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. The orders sought 1. It is not suggested by any of the parties that the boys should be separated and therefore the issues that are referred to in this decision relate to the boys as a group. 2. Mr and Mrs Ali ask the Court to: * make a finding that restoration to them is a realistic possibility * direct the Secretary to prepare a new care plan and following the care plan, to make an order of parental responsibility to the Minister for 12 months followed by supervision order for two years; two s 82 reports at five and then eleven months, the five‑month report to enable an appropriate review of the progress of any intensive restoration service; a s 76 report and an order accepting undertakings from the parents that they cooperate with the restoration service and any other referrals the Secretary deems necessary to support the restoration process and to support the children's needs; to engage with Mrs Starkey and finally any other undertaking the Court requires. 1. The Secretary and the Independent Legal Representative ('ILR') asked the Court to dismiss Mr and Mrs Ali's s 90 application. Representation 1. The matter has been heard at the Children's Court at Parramatta over eight days. 2. Mr and Mrs Ali, the applicants in the s 90 application were represented by Mr Braine, the Secretary by Mr Whelan and the independent legal representative by Mr Sperling. This has been a most difficult matter, and I am grateful to the representatives for their attention to detail and their ongoing assistance throughout. The applicable legal framework 1. The Children and Young Persons (Care and Protection) Act is to be administered under the principle that the safety, welfare and wellbeing of the children are the Court's paramount concern. 2. It is now well‑settled law that in decisions under the Act involving restoration the appropriate test is whether there is an unacceptable risk of harm to the child; in accordance with the case of M v M (1988) 166 CLR 69, [1988] HCA 68. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard. 3. In the matter of Campbell [2011] NSWSC 761 it was held that the concept of realistic possibility of restoration is not to be confused with the mere hope that the parents' situation may improve. The possibility must be realistic; that is, it must be real or practical, it must not be fanciful, sentimental or idealistic or based upon unlikely hopes for the future. It needs to be sensible and common-sensical. 4. When considering an application pursuant to section 90, I have to take into account the matters contained in s 90(6) of the Act, namely; 1. the ages of the children 2. the wishes of the children and the weight to be given to those wishes, 3. the length of time the children have been in their current placement 4. the strength of the attachments of the children to the birth parents and present care‑givers 5. the capacity of the birth parents to provide an adequate standard of care for the children 6. the risk of psychological harm to the children if the present care arrangements are varied or rescinded. 1. Although I am bound to take those matters I have just mentioned into account, s 90 does not limit my consideration to those factors and in my view I must consider all relevant circumstances. In this case, I have formed the view that I also need to consider the current and future needs of these children and the ability of the current carers and the current care arrangements to meet those needs. The ages of the children – s90(6)(a) 1. Sadiq was born on [ ] 2011 so he is now six years and nine months old. Aatif was born on [ ] 2012 and is now five years and seven months old and Abbad was born on [ ] 2014 and has recently turned four. The wishes of the children and the weight to be given to those wishes – s90(6)(b) 1. It was submitted on behalf of the parents that the wishes of these three boys aged six, five and four be given limited weight if such wishes can be gleaned by oblique statements made by them. Instead, I am urged to focus my attention on the contact reports, the majority of which are positive. Mr Braine directed my attention to the most recent reports where Sadiq and Aatif told the contact supervisor that they enjoyed contact. 2. Given the ages of the children and the fact that the independent legal representative has not communicated their wishes, I am not able to give much weight to the wishes of the children. I do note, of course, that the children are stable and settled and meeting their milestones in their current placement. I also note that contact is generally an enjoyable experience for the children. The length of time the children have been in the care of their current carers – (s90(6)(c)) 1. Sadiq and Aatif have been in their current placement for four and a half years. For Abbad, who was discharged from the hospital to the foster carers, the foster carers' home is the only home he has ever known. It is acknowledged that given their ages, Sadiq and Aatif will not have a significant memory, if any memory at all, of living with Mr and Mrs Ali. I must therefore place a great deal of significance on this factor. The capacity of Mr and Mrs Ali to provide an adequate standard of care for the children - s90(6)(e) 1. I will first consider s 90(6)(e) and then return to a consideration of s 90(6)(d). 2. There were three main issues raised in relation to the capacity of Mr and Mrs Ali to provide an adequate standard of care for the children. Those three issues were the risk of physical harm, the differential treatment of Sadiq and Mr and Mrs Ali's parenting capacity including their capacity to provide financially for the children. I will deal with each of these in turn. Risk of Physical Harm 1. In relation to the risk of physical harm, I considered two reports from Ms Starkey, dated 16 May 2016 and 1 May 2017 and her oral evidence in the final hearing of this matter. 2. Ms Starkey has been seeing Mr and Mrs Ali for therapy since 4 June 2015 on a fortnightly basis and that therapy continues. She has agreed to continue her treatment of Mr and Mrs Ali beyond these proceedings and stated that the plan to continue to see them is not based on their not having reached many of the goals set for therapy, but to support them in whatever arises as a result of these proceedings. I say at this point that Ms Starkey is a highly qualified and experienced clinician. Her reports and evidence were comprehensive and opinions were not successfully challenged. I give considerable weight to her evidence. 3. Dr Banks, whose evidence has featured prominently in these proceedings, is also a highly qualified and experienced clinician. Dr Banks had the benefit of seeing these boys over a number of years and he has provided the Court with detailed, carefully considered and, in my view, well‑reasoned and balanced evidence. His evidence, like Ms Starkey's, was not seriously challenged and I place considerable weight on his opinion too and was much assisted by it. 4. Returning now to Ms Starkey's evidence. She said that Mr and Mrs Ali were frequently challenged by her in therapy about the reasons for the children's removal and they now accept the injuries were their responsibility. She has formed the view that both Mr and Mrs Ali have developed insight into the child protection factors involved in the injury of Sadiq. It is Ms Starkey's opinion that Mr and Mrs Ali have shown commitment to changing their lives so that they would be able to care for the children more effectively and they have benefited from these changes on a personal level as well as in their role as parents. 5. In oral evidence Ms Starkey stated: I am of the opinion, that the parents do demonstrate insight into the fact that they caused the injuries, particularly Mrs Ali caused the injuries to Sadiq and that she is remorseful for that injury and that they are aware that they have to make sure that nothing like this ever occurs again. And the way that they've done that is to address the factors that I've told them I believe contributed to that situation. 1. Ms Starkey identified the risk factors that she has been working on with the Mr and Mrs Ali as; * Mrs Ali's depression * Mrs Ali's isolation * Mr Ali's lack of engagement (which was from working long hours and not from lack of interest) * the strength of their relationship as a couple (as they did not know one another very well when the children were removed); and * lack of attunement 1. In relation to attunement, Ms Starkey said that one day Mrs Ali said to her she had been thinking about how Sadiq would have been feeling and thinking and about his needs when he was living with them in the flat after leaving Bangladesh. She was very sad about that reflection and her own lack of understanding for him. Ms Starkey said: So I felt that was quite a breakthrough for her, to actually reflect on the fact that she was not attuned to the children, particularly Sadiq. And from a psychological point of view that lack of attunement is one of the factors that can lead to physical abuse or other kinds of abuse. The taking of responsibility 1. Ms Starkey noted in her evidence that sometimes parents who do not admit to having hurt their child have their child returned to them and there are no further incidents of abuse. She said that though she considers it really important for parents to acknowledge that they hurt the child in terms of a therapeutic process because it allows the examination of the factors that led to it, the taking of responsibility leads to some confidence in the change process brought about by the therapy and more confidence that the abuse is less likely to happen again. 2. Ms Starkey accepted Mr and Mrs Ali had a history of lying to authorities, Dr Banks and the Court on a number of issues and over a considerable period of time. Ms Starkey did not consider that this is a concern for the Court in relation to the amount of trust that can be put in promises that they give to the Court in relation to implementing a restoration plan. The reason she gives for this opinion is that Mr and Mrs Ali are in a different space now. She spoke about the fact that she has not made her work with them easy and despite this they have "stuck with it" and worked hard and taken up suggestions and changed dramatically. 3. Mr Whelan asked Ms Starkey questions about Mrs Ali's acceptance of responsibility in light of the severity of the injuries described by Dr Fonseca. Mr Whelan put to Ms Starkey Dr Banks' report when he said: Notably during the assessment the parents acknowledged that Mrs Ali had previously smacked or hit Sadiq with a remote control, but continued to deny any knowledge of how Sadiq sustained bruises, fractures to his pelvis and arm and dental abscesses. 1. Ms Starkey said she did not see it as significant from a psychological point of view that Mrs Ali has not made a clear disclosure about the strength of the blow that caused the injury. She explained that it is not necessary, in order to overcome the issues that were related to and the factors involved in leading to the assault, to make such a disclosure. 2. Ms Starkey's evidence was that the factors that led to the injuries - and she leaves out the dental damage which would have arisen before the arrival in Australia - had been worked on effectively. 3. Dr Banks also addressed these issues. In his report of 6 December he concluded; At this point based on this updated assessment, there is insufficient evidence of sustained change on the part of Mr and Mrs Ali to justify the impact of disrupting the children from what appears to be a highly stable positive placement (despite some identified limitations) for them as a united sibship. That said I am reluctant to discourage hope or the possibility of the parents seeking a future review based on continued efforts to develop themselves and their parenting skills. 1. Dr Banks was asked in oral evidence whether he stood by this statement in light of Ms Starkey's evidence. He acknowledged nine months had passed since his report and Mr and Mrs Ali had continued to work at developing themselves and taking on board a number of criticisms that he had raised. He said he had a strong sense that the Alis' care capacity had improved quite demonstrably whereas the concerns he had about the quality of the foster‑carers remained static. He said his position would not be as strong as the position he put forward in his report and that the Court should remain open to the prospect of the word "realistic" having depth and meaning in this matter. 2. Dr Banks was asked whether he would make a firm recommendation regarding restoration and he said he could not do that given he did not have all the evidence, however on the evidence he had been provided with he said: There is certainly sufficient for me to moderate my opinion about the likely risks that the children face and acknowledging those risks believe that there has been considerable growth on the part of the parents in their development and understanding and insight as well as their efforts to better position themselves within the Australian community and of the values that go with that, and also their engagement, long‑term engagement, with health care professionals. 1. Dr Banks accepted that Mr and Mrs Ali have not, even to this day, provided a sufficient explanation for the very serious injuries Sadiq suffered and that if the injuries were deliberately inflicted, rather than caused by lack of supervision, then that would make the risk greater. Even so, he formed the view that the risk has certainly been ameliorated. Dr Banks agreed with Ms Starkey that generally children can be safely returned to their parents' care after an injury even without the acknowledgment from parents that they are responsible for the injury. 2. Dr Banks was then asked about what factors should be taken into account when making a decision in such circumstances. His evidence was: I think the readiness of the parents to acknowledge that regardless of whether they accept direct causal responsibility that at the very least they accept supervisory responsibility, or the deficit of that, such that they needed to improve their overall parenting ability to monitor better, to care for better or to structurally alter the environment in which the parent, the child or children. Further to that, it's then their efforts to not just engage but to engage and participate in training, structured training, programs and individual therapy to explore issues of their own development and necessary skill acquisition, and insight about the risk factors to be able to evolve themselves as a parent. 1. Dr Banks evidence continued: I think the Court has got a viable body of evidence that I only wish would be presented to the Court more often in these matters. So it's to these parents' credit that they have kept going and kept going and kept going and their conduct at contact events and I think the one that was witnessed observed by Ms Starkey I found quite informative about the conduct, about the parents' conduct. But their conduct through that process has demonstrated an ongoing commitment to their children first and foremost and in line with that presented readiness to develop themselves in that process. Risk of Physical Harm 1. In relation to the risk of physical harm, the Secretary made some detailed submissions which were adopted by the independent legal representative. The Secretary referred me to the case of SL v The Secretary, Department of Family and Community Services [2016] NSWCA 124. 2. In SL the five‑month‑old boy suffered life‑threatening head injuries causing him to undergo extensive surgery and be hospitalised in intensive care for months. The mother who suffered from epilepsy said she experienced convulsions while carrying the baby from the car park to their unit and that he was propelled out of her arms by the jerk and landed on the concrete floor, and she then picked him up and dropped him again three times. 3. The judge found that the proximate cause of the injury sustained by the baby was non‑accidental and that the injuries remained unexplained. The Court of Appeal noted that the mother had recounted a cause of the injuries which was found to be no more than a possible explanation, the mother's account was entirely inconsistent with the possible intervention by a third person with the inevitable conclusion that she alone was the cause of the injuries whether through neglect, involuntary conduct in the course of her seizure or some form of intentional abuse. 4. The primary judge accepted that the parents loved their child and were capable of providing for him financially, emotionally and psychologically and that they had been exemplary parents in their involvement in his rehabilitation and development. The judge also accepted that the parents had acted cooperatively with the department and that there were no other psychosocial factors present which might be suggestive of the baby being at risk. She acknowledged that as the baby's age and self‑protective capacity increases so his vulnerability is likely to reduce. 5. Basten J referred to the following excerpt from Senior Children's Magistrate Mitchell's Re Anthony and Hodgson J in T v H: Had there been an explanation of his injuries, the result may have been different. If the cause of the injuries was known and was acknowledged by the person responsible, one could assess the likelihood of that person acting again so as to cause the injuries. It would be possible to assess the risk involved to the plaintiff and to weigh that against the advantages of returning the plaintiff to his parents. However, in the absence of any explanation, it is far more difficult to assess and weigh the relative advantages and disadvantages in this manner. 1. The Secretary argues that just like in SL, there has been no explanation for the injuries sustained by Sadiq even today. The Secretary asks me to reflect not just on Dr Fonseca's written report, but also on his oral evidence which included that the pelvic fracture was frightening, it would have required very considerable force and it was a life‑threatening injury. 2. The Secretary submits that Mrs Ali has been interviewed many, many times and has always denied knowing how the injuries occurred. Even in the affidavit she prepared for these proceedings Mrs Ali recounts only one time where she may have injured Sadiq. 3. I agree with the Secretary's submission that Mrs Ali still offers no explanation which is consistent with the injuries. I agree too that the injuries, at least the most serious fractures and some of the bruises, were clearly non‑accidental, they all occurred when Sadiq was in Australia and the injuries occurred at different times, thus establishing a pattern of abuse and that the person to inflict those injuries was an adult. 4. I cannot be satisfied on the evidence that Sadiq's dental issues were caused when Sadiq was in Australia or in the care of Mr and Mrs Ali. I do note however that he had not received treatment for his dental issues whilst he was in Australia. 5. I accept the Secretary's submission that most of Sadiq's serious injuries remain unexplained. The Secretary said that there were three possible reasons posited for the Mrs Ali's failure to explain them, firstly that she was angry at the time and doesn't remember what she did or as Mr Braine suggested, she was scared to say what happened because she was scared of the police or as Ms Starkey said in her report that she was lying. 6. The Secretary submits, given the reasoning in SL, the risk cannot be addressed or ameliorated when the nature of the risk has not been identified. Given that it is unknown why Mrs Ali continues not to explain how the injuries were caused and given that the parents have both lied extensively and evinced an intention to lie to get their children back I would have to treat their evidence with extreme caution and further, in such circumstances, it would be difficult to construct a safety plan. 7. I agree with the Secretary's characterisation of the injuries as extremely serious, life threatening and caused by a considerable force and representing a pattern of abuse over time. 8. I agree that at least the most serious of these were non‑accidental and they were unexplained. It is no longer in dispute that Mrs Ali caused those injuries and that neither she nor Mr Ali sought medical attention for the injuries. Mrs Ali, when interviewed by many different people, including medical staff, police and FACS, denied causing the injuries. Mrs Ali now accepts the medical evidence, she now accepts that she caused the injury but does not explain the specific events and how the injuries occurred. In my judgment the case of SL, referred to me by the Secretary, is distinguishable in one key factor with the facts before me. 9. In SL the mother's explanation was that the injury was accidental. Here, in this case, Mrs Ali accepts the injuries were her fault. She told me that she caused them. So in the case of SL with the cause unknown the cause cannot be addressed and the risk assessed and mitigated. In this case Mrs Ali has said, I did it, I take responsibility for it but I can't say how I did it. In this case the risk factors which led to the actions are known, those risk factors can be assessed and mitigated. Although the precise mechanism of the injuries is not known I accept the evidence of Ms Starkey that it is not necessary to know the precise mechanism to treat the cause. 10. When Ms Ali inflicted the injuries on Sadiq she was physically unwell due to the side effects of her pregnancy, she was very young, even younger than she is now, in a new, unfamiliar culture and country. She did not speak English, she was extremely isolated, she had no support from Mr Ali as he was working very long hours and she was in all likelihood suffering from depression. She was, in these disturbing circumstances, caring for two young children who were developmentally at a challenging age and it is a real possibility that Sadiq, who had recently been separated from his main attachment figures, was acting out due to this disruption, thus adding to the challenges of caring for a two year old. 11. Mrs Ali has now gained good skills in the English language and is now familiar with Australia and its culture. She has been working, she has a driver's licence and a car, contacts in the community, an improved relationship with her husband and she has his ongoing support. Her depression has been fully treated and she has successfully undertaken a number of parenting courses. She has been having regular therapy with Ms Starkey and has developed insight into her actions and accepted responsibility for her actions. Mr Ali too has participated successfully in the therapy and has taken responsibility for his part in the circumstances that led to the removal of the children. 12. Both Mr and Mrs Ali have developed insight and empathy for the plight of these three children. They have demonstrated unfailing commitment to addressing the risk factors that led to the physical harm of Sadiq and they have in my view successfully done so. In all the circumstances I find there is no longer an unacceptable risk that the parents will cause physical harm to the children. The risk of differential treatment of Sadiq 1. The Secretary argues that there is an unacceptable risk that Sadiq will, if restored, continue to be subjected to differential treatment which will cause him significant psychological harm. 2. The Secretary submits that I will come to this conclusion after considering that: * Sadiq was the only child injured by Mrs Ali, there being no injuries to Aatif * The hospital notes at the time of Sadiq's admission in July 2013 clearly note that Mrs Ali was mainly concerned about Aatif * Dr Banks noted the differential treatment of Sadiq in all of his reports, even in his first report before he knew that Sadiq was not the Alis' biological child * Dr Banks formed the view in his earlier reports that Sadiq was the targeted child in a sibship group and that he was scapegoated * The Child Protection Counselling Service also expressed concerns of a very similar nature to Dr Banks * Mr and Mrs Ali were willing, although they ultimately changed their mind, to agree to the repatriation of Sadiq to Bangladesh. * the contact reports often note that Mr and Mrs Ali may pay more attention to their biological children. 1. Dr Banks made several observations regarding his concern about the differential treatment of Sadiq by both Mr and Mrs Ali. That concern was expressed in his first and second reports and this theme was continued in his third report where he stated; Both parents rarely engaged verbally or physically with Sadiq other than Ms Ali handfeeding food into his mouth in sizeable amounts. The parents were observed to carry and hold Abbad close to them for the majority of the observation. Despite Sadiq's extremely good behaviour the parents did not acknowledge or praise him at all, instead their efforts were consumed in managing Aatif and Abbad who constantly pushed boundaries, cried and screamed throughout the observation period. 1. In his summary Dr Banks states that whilst he acknowledges the parents have engaged in significant efforts to comply with recommendations and psychological therapy there remains a number of concerns which include that the parents interact more frequently with Aatif and Abbad and not with Sadiq. 2. Dr Banks, in his oral evidence in these proceedings, said that the Court would need to hear from Ms Starkey to assess whether these issues had been raised and addressed in therapy. When Dr Banks was asked about whether there was any concern about Mr and Mrs Ali's ambivalence to caring for Sadiq when they were agreeing to his being repatriated to Bangladesh he said; Concerning is one word but I suppose I am mindful of the complexity of the matter and in trying to understand their motivations for doing so. The possibility they were then also respecting Sadiq's biological parents should not be excluded equally in a sense their desperation to see restoration of their two children has been significant and should be factored in. So yes I can understand your question and I do remain concerned about it but I see it as understandable and I'm not sitting in judgment on that. 1. Dr Banks was then asked by Mr Whelan on behalf of the Secretary whether he stood by his previously stated position that one of the more damaging environments for a child is actually in an ambivalent care environment where there is either a readiness to relinquish and/or variability of motivation to care. Dr Banks said that he did indeed stand by that view but he alerted the Court to a consideration of this element for the foster carers also. 2. Ms Starkey reported that Mr Ali stated in the early part of therapy that Sadiq was like his own child in his culture as he had taken on the care of this child because his sister was unable to care for him. She also reported that, "Mrs Ali longs for her children including Sadiq whom the couple think of as one of their family to be returned to her care." Ms Starkey said that she did not observe the parents engage less with Sadiq but noted that he did have a tendency to wander off on his own. She reported on the visit she observed that all the children were excited to see Mr and Mrs Ali and they vied with each other to hold Mr Ali's hand and they sought interactions with both of them. 3. Ms Starkey stated that Sadiq behaves differently with the parents and carers. In the contact report she was given the contact workers reported that the parents are giving equal time to all three children. The differential treatment was certainly a major problem in the beginning but seems to have changed. 4. In relation to Dr Banks's view that Mrs Ali particularly was emotionally disconnected in her interactions with Sadiq Ms Starkey said that Mrs Ali was emotionally disconnected generally. Due to her depression, she was quite detached, but she did concede that this was more pronounced with Sadiq. 5. Ms Starkey was also asked to comment on the ambivalence of Mr and Mrs Ali in relation to the restoration of Sadiq in the earlier proceedings changing their position in those proceedings to agree Sadiq could be returned to Bangladesh. She said that given the circumstances with immigration involved it was her impression that the ambivalence was somewhat pragmatic rather than necessarily emotional. 6. Several reasons have been presented as to why Sadiq may have been seen to have been treated differently by Mr and Mrs Ali: * When first in their care he was not only at a challenging age developmentally, he had been removed from his attachment figures and then put in an alien environment. It was noted in Ms Starkey's report that when he arrived in Australia Sadiq did not like to wear a nappy as in Bangladesh they did not have nappies and the children would just go outside. * Sadiq no doubt had some challenging behaviours when he was being cared for by Mr and Mrs Ali and given his age and experience much likely much more challenging than Aatif's. * Sadiq is older and self-contained whereas Aatif and Abbad are younger and demanding and this was observed with the interactions with the foster carers and not just with the parents. 1. Mr and Mrs Ali have expressed their commitment to Sadiq, they are aware of the concern and appear to be making an effort to address it. This commitment and effort has been borne out by the more recent contact sessions. 2. Mrs Ali has been reflecting on and empathising with Sadiq and his experiences. This issue is also one which Ms Starkey is aware of and will continue to work on with Mr and Mrs Ali. 3. After considering all the evidence and submissions I have formed the view that Sadiq is no longer at an unacceptable risk of harmful differential treatment from Mr and Mrs Ali. Mr and Mrs Ali's parenting capacity 1. Mr and Mrs Ali have never had the care of all three children. Mr Whelan correctly pointed out that they have only had two children in their care for three months and this was with disastrous effect. Mr Whelan also reminded me that Mrs Ali could not articulate parenting strategies when asked, despite attending parenting courses and further, that many of the contact reports highlight the inability of Mr and Mrs Ali to safely supervise and manage these three boys. 2. Ms Starkey notes in her report that learning from parenting courses is more beneficial when parents have the children in their care. These parents, she said, have had limited capacity to put the precepts learned into practice. Mr and Mrs Ali, she says, will require some practical coaching if there is to be a restoration. I also note that in her interview with Dr Banks the foster mother was unable to articulate disciplinary and parenting strategies. 3. Mr and Mrs Ali gave extensive evidence about their plans to move to a house and perhaps even purchase a house with financial assistance from the paternal family in Bangladesh. They also gave evidence of their awareness that Mr Ali needs to offer a considerable amount of support and assistance to Mrs Ali in caring for the boys if they are restored and told the Court that Mr Ali would work less hours in order to do so. Neither Mr nor Mrs Ali considered that there would be a problem in Mr Ali maintaining the requisite level of income and being available to support Mrs Ali. Both the Alis sought to explain that Mr Ali had very flexible working hours as a taxi driver. Both expressed confidence that the flexibility of Mr Ali's job will allow them to maintain the necessary balance between income and support. 4. When the children were removed the reason Mr Ali was not available to assist and support Mrs Ali was because he was working because his family needed the money. Financial stress is therefore a very relevant issue. 5. Mr and Mrs Ali, in my view, are being quite naïve and optimistic about their financial situation if the boys are returned to them. It seems to me that they will struggle to raise three children with one modest income. 6. Ms Starkey formed the view that the parents are capable of learning with instruction about how to help the children. She gave multiple examples of times when they have reflected on recommendations or advice and issues and have taken those on board and changed. She gave evidence of her availability to assist in ongoing therapy and has given her commitment to do so. She said they will need a carefully planned program to transition the children from seeing the parents once a month to being in full-time care and a restoration service would be suitable. They need to be taught in her view because they have never had the children in their care. 7. The parents have never had the care of these three children. The contact reports report on the struggle they have had in managing the boys' behaviours. These struggles will persist and may worsen if the disruption to the children's lives and attachments affect their behaviour. Mr and Mrs Ali underestimate the financial stress they will be under. I accept Ms Starkey's opinion that the parents now demonstrate a good understanding of the child protection concerns leading to the removal of the children. They are keen to learn to become good parents. They may underestimate the challenges of caring for three children under the age of five to some extent and would need further help in this area should the Court order restoration. Mr and Mrs Ali have tried to address the issues that were assessed to have contributed to the environment in which the abuse of Sadiq took place. 8. In my view Mr and Mrs Ali have proven capacity to learn and implement what they have learned. They are very highly motivated and incredibly committed. It is acknowledged by them that they will need an intensive restoration service and continuing assistance from Ms Starkey. I reject the submission that the Court would have to be concerned about the parents taking these up. Mr and Mrs Ali's circumstances and insights have massively shifted since the removal of the boys. They have been challenged over and over by Ms Starkey but have not walked away. 9. I find Mr and Mrs Ali will be accepting of, and grateful for, and will utilise effectively and respectfully all assistance offered to them. 10. I do not consider that Mr and Mrs Ali's limited parenting skills pose an unacceptable risk to the children given their ability and willingness to learn and accept assistance and their commitment to do so. The Strength of Attachments – s90(6)(d) and the Risk of Psychological Harm if the present care arrangements are changed - s90(6)(f) 1. I will deal with ss 90(6)(d) and 90(6)(f) together. 2. Dr Banks addressed the issue of attachment in his evidence. In his report of 10 March 2015 he referred to Mr Joon, the foster father, and said that Mr Joon remained attentive to all three children, though was noted to engage with Abbad only. There was limited or no engagement of play between himself and the older children. He said Sadiq remained distant from both foster carers and did not react when they left or entered the room. Dr Banks paid particular attention to Sadiq's attachments. He said in relation to the foster carers; Sadiq tended to demonstrate an avoidant attachment style with his foster carers. Both Mr Joon and Ms Hase were generally attentive to the children, though were noted to attend to Abbad more frequently with more demonstrable affection. In contrast to Aatif, who sought Ms Hase's attention and engaged in proximity seeking frequently, Sadiq played independently and distanced himself from either foster carer. Sadiq remained respectful towards Mr Joon and Ms Hase and responded to their requests to share a toy with Aatif. However he generally maintained a disengaged and avoidant stance, playing away from his foster carers, maintaining neutral affect with them and did not engage in any proximity seeking behaviour throughout five hours of observation. He did not engage with them verbally unless spoken to in English. He tended to remain silent when they spoke in Uyghur. He did not invite them to engage in a joint activity and did not initiate any conversation with them. Comparatively, he engaged in conversation with Aatif easily and comfortably. At this point in time Sadiq's attachment to his carers would best be described as an avoidant attachment. 1. Dr Banks, in his report, issues a warning under the heading "Quality of Interactions". He stated that both foster carers were less emotionally attuned to the elder boys and "I would suggest that the foster carers should be offered greater support in terms of parenting technique and remaining emotionally attuned to the children. Whilst all three children are reported to be relatively well adjusted at the time of assessment it is more likely than not that they will develop insecurities and issues commonly associated with children in out of home care, including self-identity, difficulties with self-esteem and self-confidence as they mature, Sadiq and Aatif in particular." 2. In his report of 6 December 2017 Dr Banks reported that: "The children appear to have formed a strong attachment to the carers and they appear well adjusted in the carers' home." 1. He comments: The carers were observed to be attuned and attentive to the children's needs whereby they communicated and listened to the children. 1. In relation to Mr and Mrs Ali Dr Banks stated; They do not appear able to engage emotionally with the children and often use toys or food to distract and pacify the children. 1. In oral evidence Dr Banks confirmed that the observational setting was a strange office and that needs to be factored in. 2. Dr Banks continued in his report as follows; Currently the children's physical, emotional educational and religious needs appear to be more than adequately met at the placement. The carers appear committed in meeting the children's needs and the children appear to have formed a strong attachment to them, they appear well adjusted in the carers' home as demonstrated in the significant contrast in their behaviours compared to the day before at contact with their parents. 1. Dr Banks backtracked somewhat from this position in his oral evidence. He said that he formed this view from the observational sessions and what he had read, but after hearing some of the evidence, he considered that independent documentary evidence may be needed to support his conclusion and conceded that he did not have an evidentiary base for that conclusion. He then said, The words he used were way too strong and he should have been far more measured. 1. Dr Banks said that in the context of reflecting on how much time he had spent with the carers discussing Sadiq's teeth when they were giving him lollipops. Dr Banks also made comment about sweet things being given to the children for breakfast on the day of the assessment which was of concern to him given the problem with Sadiq's teeth. 2. In oral evidence Dr Banks told me that: * it is significant that the children have had a relationship with the carers for four years * if the children were removed they would experience grief * it is possible that Sadiq has a "disorganised attachment" to the carers and Dr Banks said he did not hear any evidence from SSI "to suggest a mindfulness on the part of the case management provider that is in anyway sensitive to this issue" * If restoration was not successful that could have a very significant adverse effect on the children * "It's a finely balanced decision to take hope that this restoration might work and potentially lose the current stability." * Aatif's reaction to his Registrar, where Aatif hugged her around the waist in a disinhibited way, did not give him any comfort to say that Aatif's attachment to his carers is as secure as he would have liked to have been given the length of time Aatif had been with his carers. Dr Banks expressed his concern as follows: It is concerning because there was evidence of a not-secure relationship or evidence of an attachment relationship with secure and potentially disorganised or disinhibited features also. * There is a real risk to the children if disrupting their current placement, that may well include disturbances in sleep, more insecure and fretful behaviour for Aatif and particularly Abbad in response to the absence of his carers. Sadiq may have a greater degree of isolation and would become more withdrawn. Disruption and stress is a given. Aatif and Abbad would demonstrate the strongest grief reactions and they would be expressing likely the most emotional distress. All of them would experience and demonstrate considerable features of behavioural and emotional regression. * The effect will be influenced by how well it is managed and how well prepared the parents are and Ms Starkey as the treating clinician will have a role in this. 1. In answer to the question whether the damage he described would be permanent, Dr Banks replied that the quality of the response to the children's behaviours by Mr and Mrs Ali and the sophistication of the approach by them would determine whether there is or is not damage and will also determine the severity of the damage if there is some. 2. The behavioural and emotional regression that Dr Banks referred to needs to be weighed with the possible challenges the children will face as they enter middle childhood, being the years 6 to 12 and then adolescence, (13 onwards), associated with their identity and awareness of their biological origins and the fact that they aren't part of that. The behavioural issues and emotional regression are short term, but "long term within the foster care scenario, there are enormous long term repercussions that also need to be kept in mind." 3. Dr Banks reminded the Court that the most challenging period for children in out of home care is often the adolescent period when they have an awareness of their birth family and demonstrate a greater level of independence and can vote with their feet and self-place. This is because regardless of the best efforts of even the best foster carers they will be constantly challenged by that construct of the notion of contacts, the notion of identity, the issue of surnames, racial positions, custom, language, culture et cetera. 4. Dr Banks was asked about the risk to foster placements in adolescence and replied: "And that's where you have placement breakdown, where the children become more and more challenging and also outspoken or expressive either behaviourally or verbally or both. And as I said middle childhood say 6 to 12 at a point where the children start to form a cognitive representation of having two worlds and two families and understanding and comprehending that their foster carers are not their family and then bringing forward that realisation in day-to-day behaviours and tantrums quite often characterised by 'You are not my father, you are not my real father, you are not my real parents, they are my real parents.' And then it becomes a battle of comparisons and again more challenges for the child." 1. Dr Banks said breakdown is escalated where there are questions about the motivations of the carers. 2. Dr Banks considers that in this case the risk of breakdown of placement in the future is increased because here it appears that the foster carers are not open and willing to change or to take advice. Dr Banks has observed this over a two year span. 3. According to Dr Banks evidence: * all three children are at risk of losing their relationship with their natural family due to the arrested development of their Bangla language * currently the children do have an attachment "of knowledge" to Mr and Mrs Ali but not an attachment in the same way to the current carers. They certainly wouldn't have a clear and sustainable memory of their parents, well, let me limit that to Sadiq and Aatif. They have sustainable memories, so there is an enduring element to their relationship with their parents. They have a known and observable familiarity and clearly a comfort derived from contact sessions where they enjoy play and they enjoy the expression of affection both on approach and on receipt. So they are demonstrating affection, Abbad to a lesser extent, but certainly Aatif and Sadiq from the contact record notes. They are all three of them receiving affection without refusal or rejecting of that behaviour. Two of them at least who show reasonable proximity of maintaining behaviours which means that they prefer to actually stay around mum and dad rather than go off and explore. Sadiq is a different element but he has got his own issues and challenges, part of which is clearly going to be demonstrated in acting out and being independent. Demonstrating greater independence of course, is also age-related. Conclusion 1. The Secretary submits that these boys have a new family; that the most recent report show that Abbad did not want to go to contact and needed reassurance from his carers. Neither did Aatif want to go to contact as he wanted to go his (foster) sister's graduation. The Secretary asked me to take note the fact that Abbad refers to the carers' daughter as his sister and that the relationship that the boys have with Mr and Mrs Ali is based almost entirely on contact. 2. It is a significant issue in this case that these boys have had a relationship with their foster carers for four and a half years, and for Abbad this is all of his life. These boys do not have an attachment to Mr and Mrs Ali but they do have an attachment to their carers. If the children are removed from that environment, the children will experience a sense of loss equating to grief and potentially it will be a huge disruption for them. 3. I have to be mindful that, sadly, Sadiq has already been removed from his attachment figures twice in his young life - his mother and then the Alis. I accept that the restoration, if it was unsuccessful, would have significant adverse effects on these children, particularly given the current placement may then no longer be a placement option. I also need to take into account that there is a risk in this placement, as in all placements, of placement breakdown. 4. Dr Banks talked about the importance of support, particularly in the form of language and Life Story work for Sadiq. He warns that a failure to provide this may adversely impact Sadiq in the formation of his personality and self‑identity. Importantly, Dr Banks considers that if this issue is not appropriately and adequately addressed it will result in Sadiq positioning himself as a child of difference. This is, of course, one of the risks the Secretary raises in respect of Mr and Mrs Ali. 5. Dr Banks said there was no evidence that SSI was in any way sensitive to the issue of possible disorganised attachment of Sadiq. When Dr Banks wrote previous reports, given Sadiq's age he recommended training for the foster carers. SSI never contacted him about it. 6. In relation to the differential treatment of Sadiq Dr Banks expressed concern that Sadiq was sleeping in a converted laundry away from the rest of the household. He stated that the other point of difference he was concerned about was that the carers were clearly far more engaged with Abbad than they were with Aatif and Sadiq. 7. Ms G is the casework manager from SSI responsible for the boys and I asked the Secretary to arrange for her to give evidence. The Secretary had not filed any affidavits from Ms G or any caseworkers from SSI. Ms G was asked about whether Sadiq had any differences with Abbad and Aatif in terms of his personality or his needs or his attachments. She answered; Regarding his attachment with carers same as other children, no difference. 1. As SSI made no follow-up with Dr Banks and can see no issue with attachment, I can have no confidence that SSI will tackle the concerns about attachment that have been raised by Dr Banks. The needs of the children and the ability of the current placement to meet those needs and the risks to the children if present care arrangements are sustained 1. I now turn to the needs of the children and the ability of the current placement to meet those needs and any risks to the children if the present care arrangements are sustained. 2. Dr Banks has had the benefit of seeing the carers and the children together for his reports in March 2015 and December 2016. In 2015 he noted that on their arrival all three children were wearing nappies. At the time Sadiq was three years and nine months old and concerning that he was in a nappy in the daytime. 3. In relation to the 2015 interview Dr Banks stated: Both Mr Joon and Ms Hase showed a preference to speak in Uyghur to each other and also to the children. When asked if they speak in English to the children, both carers reported that they "always speak to the children in English" and clarified that they speak Uyghur to each other. They were observed to speak mainly in Uyghur to each other and to the children for the majority of the assessment…. 1. The failure of the foster carers to speak English to the children and the importance of gaining English language skills and conversing in English with the children has been a consistent thread through Dr Banks' evidence. 2. Dr Banks raised questions about the engagement of the foster carers with the children. Mr Joon and Ms Hase reported to Dr Banks that they are not employed. At this point of the interview, their responses became increasingly vague, defensive and terse in nature. When the clinician asked about Mr Joon's daily schedule or activities and what he does with the children during the weekends, Mr Joon became increasingly apprehensive about the clinician's questioning. He appeared very reluctant…" 1. In relation to Mr Joon, Dr Banks noted the following: * he was not able to clarify what activities he engages in with the children * the children usually play and he supervises them rather than engages with them * Sadiq and Aatif only usually wear nappies at night and they have commenced toilet training (I note that, Sadiq was three years and nine months old at the time) * he had not given any thought to when the children will attend kindergarten or primary school and nor had he made any enquiries in regards to this * he had not considered whether the children would play any sport and did not appear motivated to seek extracurricular activities they may enjoy * he did show a good understanding of Sadiq's medical needs * he and Ms Hase do not have a foster supervisor, they just receive training, though he could not recall the last course he completed. * he and Ms Hase would like to be considered as long term foster carers for the three boys. 1. Dr Banks concluded: He did not appear to understand the significance of maintaining the children's relationships with the Bangladeshi community. He held the perception that he did not need to engage with the Bengali community unless the children were placed with them for long-term placement. Currently he reported that they do not have any links with the Bangladeshi community and evinced a lack of understanding about the importance of preserving and developing the children's cultural awareness. 1. Dr Banks noted in his interview with Ms Hase that: * from the outset "she appeared noticeably agitated; she maintained tense body language….She maintained minimal eye contact and was guarded during discussions about her personal history." * She was unable to understand her reaction to the Registrar's presence was of any concern and could not understand the significance of these discussions in relation to the children * Although she did not have any contact with the Bengali community she said she would respond to any recommendations made in relation to that * She and Mr Joon attend parenting or foster programmes when requested and she recalled attending a course on how to respond to children's emotions and a First Aid Course * She provided vague responses when discussing discipline but was adamant there was never any corporal punishment * She said that the children eat balanced meals but had missed breakfast that morning and Dr Banks noted that she offered the children sweet biscuits repeatedly during the assessment 1. In the observation of the children with the foster carers Dr Banks noted that the carers were not observed to actively engage with the children. * Abbad babbled happily and appeared at ease and Ms Hase was observed to nurture him well. * When Aatif hit his head, both foster carers attended to him immediately and both spoke to him in Uyghur. Ms Hase spoke to the children in Uyghur when the boys were fighting over a toy. 1. Dr Banks raised the following issues in his report: Mr Joon reported being on Disability Support Pension for back pain, yet he did not evince any difficulties with mobilisation during the assessment and by his own account his back pain did not interfere or significantly affect his daily functioning or ability to care for the children. 1. Dr Banks raised the concern in relation to this and said that: There is a substantial body of research highlighting the adverse impact on children's development associated with the absence of any adult workers in the home environment, and with it, the risk of intergenerational welfare transmission increases proportionately. The possibility that the long‑term foster care application being made for the care of all three children is in part financially driven cannot be excluded as not only are there direct monetary benefits in terms of the carer's allowance times three, but it also obviates the Centrelink obligations on the part of both carers to seek employment. That said, given the children's future needs I still hold reservations about the foster carers' abilities to maintain financial stability to best meet the needs of the children in the long-term. 1. Dr Banks then spoke about the importance of the foster carers speaking English to the children: It is also important for the carers to understand that the more the children develop confidence in communicating in Uyghur, it is likely their competence in communicating in Bangladeshi will reduce proportionately, thereby distancing the boys from their parents and culture even further. Therefore it is strongly recommended that the foster carers converse in English with the children more frequently I hold reservations about the foster carers' ability to meet the educational language needs of the children, particularly in the long-term. 1. Dr Banks expressed in his report a concern of racism in relation to the foster carers. He expanded in cross-examination his concern about the carers' racism towards Chinese people. This arose from the foster carers' reaction to his Registrar, the details of which are contained fully in his report and I do not need to repeat them here. He was particularly concerned about this because these three boys he would categorise as boys of Middle or Central Asian origin. He said: So I was very concerned at this couple's response to a person of Asian origin and concerned about possible implications to these boys of Central Asian origin and how that might impact. 1. Dr Banks stated he was forming the foundation of concerns about the willingness of this couple to actively identify and engage with the boys' culture. 2. Dr Banks stated it was critical that the carers' racist attitudes be addressed because: I think it goes beyond just a racist attitude because I think it's a potential impediment or handbrake on this couple's willingness to actually engage in and then promote the children's cultural heritage. 1. It is very clear to me that this significant concern raised by Dr Banks will not be addressed by SSI. SSI have refused to consider this as an issue or indeed investigate Dr Banks concerns as they have instead accepted the carers' complaints about the assessment; and without investigation have blamed Dr Banks for "teasing" the carers. Ms G used the word "teasing" in relation to Dr Banks questioning as part of his assessment. 2. Dr Banks issued a warning that, whilst all three children are reported to be relatively well adjusted at the time of assessment it is more likely than not that they will develop insecurities and issues commonly associated with children in out-of-home care including self-identity, difficulties with self-esteem and self-confidence as they mature, Sadiq and Aatif in particular. Both foster carers need to be able to discuss this confidently and supportively to the children. Dr Banks said he would recommend that both foster carers attend further English courses and also conversational classes and speak more English in the home. 3. Dr Banks in his report also questions the carers' ability to maintain the children's Bangladeshi culture: The foster‑carers reported that they had received no input in how to enrich the children's cultural needs from FACS. This is a most concerning oversight. The foster‑carers' lack of understanding of the significance of maintaining Bengali community links for the children, as well as their lack of motivation to seek ways to do so, is of particular concern. Coupled with their demonstrated prejudicial attitudes to individuals of Chinese origin, the possibility that their Turkish culture will remain dominant at the expense of the children's Bangladeshi culture remains open. 1. Dr Banks concluded that the foster-carers appear able to meet the physical and basic needs of the children; they provided a safe environment. He said that he recommended that they not feed the children biscuits for breakfast, especially given their awareness of Sadiq's dental and malnutrition history. He formed the view that they were able to meet the short-term needs of the children but remained concerned about their ability to meet the long-term needs of the children unless additional support is provided to them. 2. Neither of the carers works outside the home. There is no evidence that either of them have taken English classes or conversational classes despite the fact that SSI have been funding after‑school care three days per week to allow the carers to attend such classes. 3. There is no evidence of additional support as suggested by Dr Banks or if they have been provided with such support there is no evidence that it has made a positive difference. 4. The carers state that they speak in English to the children though the clinician observed that they spoke with each other and with the children frequently in Uyghur. I conclude that the carers still continue to speak Uyghur to the children, rather than English. 5. Dr Banks saw the carers with the children and their older daughter to inform his fourth report and that report is dated 6 December 2017. In that report he makes the following comments in relation to the carers, They were aware Mr and Mrs Ali are seeking that the children be restored to their care and admitted that they had not considered how they would react if the children returned to the care of their parents. 1. I find this reaction puzzling and concerning as my expectation would be that the carers who had the care of children for such a long time would have at least been able to articulate some sadness or some concern. 2. The clinician noted that despite recommendation from previous reports, there has been no life story work completed and the carers could not produce a life storybook for each child. 3. Dr Banks gave evidence that one of the more damaging environments for a child is actually in an ambivalent care environment where there is either a readiness to relinquish and/or variability of motivation to care. He stated that the Court should be mindful of any environment of ambivalent care and that should be an "immediate red light blinking" and that this applied to both biological parents and any carer. Dr Banks was asked whether he was suggesting that the foster-carers might be ambivalent and he stated that potentially a significant driver for the foster‑carers' decision to provide care is financial. He stated: I'm not sure I've seen any or much at all to enlighten me as to what the foster‑carers' true motivations are for caring are than their desire to be foster‑carers which to me has a strong feature of being an income stream. 1. Dr Banks expressed concern both in his reports in 2015 and in 2016 that there was a lack of cultural presence in the home with respect to their biological families and country of origin and that he had seen evidence of the identified deficits of the parents' parenting capacities being addressed but not much evidence of change in the foster-carers' caring capacities. Evidence of Ms G, Casework Manager SSI Decision Making 1. I heard a great deal of evidence from Ms G. She is the manager of casework at SSI and she is responsible for the children and their carers. She acknowledged that SSI have casework responsibility delegated from Community Services. She gave evidence to the Court on 24 August 2017 and on 8 November 2017 and provided a number of documents to the Court. 2. In relation to decision making for the children, her evidence on 24 August was that she understood that Family and Community Services and the parents shared parental responsibility for culture and religion. Initially she claimed that this was not relevant to SSI as Mr and Mrs Ali and Family and Community Services meet up and make the decisions. She then changed that evidence and said that it was a grey area. When pressed she said that it would be SSI meeting together with the parents who would make the decisions. 3. Ms G's evidence was that joint parental responsibility means that the parents say what their concerns are and then she ensures that the children's religious needs are met. Her evidence persuaded me that she has limited understanding of what joint parental responsibility is or how it should be exercised. 4. From Ms G's evidence I concluded that, at no time, since SSI has had case management responsibility, has consideration been given to exercising parental responsibility with the parents. Ms G says that SSI has implemented the wishes of the parents in relation to religion and culture. This is blatantly untrue. There does not appear to have been any regular meetings in order to discuss the wishes of the parents and the parents' wishes about the children attending an Islamic school have not been implemented. Ms G's evidence does not disclose a logical or rational approach to decision-making, does not disclose an understanding that decisions should be made after taking into account all of the relevant facts and is a more complex process than simply implementing the parents' wishes. Islamic School 1. Ms G gave evidence in relation to the Islamic school. In her evidence on 24 August she acknowledged that the parents wanted the boys to go to an Islamic school. She said she was in a meeting in April in 2017 where the parents said they would pay the school fees. After this meeting she said SSI searched for a school but there weren't any in the area where they could get transport. She then told the Court that SSI do intend to send both Sadiq and Aatif to an Islamic school together and that maybe it could be done in 2018 as it wasn't practical to do it in 2017. When asked why not she said it may be practical in 2018 because the carers' daughters might be able to transport the children to school though no inquiries had been made. She acknowledged that the foster father drove and does not work and she was asked why he could not drive the children to school, the answer was as follows: "The current school is close by and allows the children to attend other activities and, secondly, the current school has scripture class and they are already exposed to the religion." 2. This answer is of course not an answer to explain why the foster father cannot drive the children to school. At the time she gave this evidence the first point she makes is irrelevant and false as the evidence establishes that the children did not attend any after school activities at the time. Indeed there is no evidence that they were attending any after school activities since Sadiq had started school. The children were attending after school care but this is not an activity as such and I will refer to this in more detail later. The second point she made is the view of SSI and not the view of the parents. 3. On 8 November Ms G again gave evidence about the Islamic School. Mr Sperling asked Ms G whether there had been any progress about the children's schooling arrangements for 2018 and she replied "No". She was then asked whether further inquiries were made and she replied "no". She explained that this was because she went through the minutes of the meeting and an Islamic School had been ruled out unless the parents agreed to pay the fees because of the distance and the boys' religious needs were met "totally". 4. This answer makes no sense because Ms G knew that the parents had agreed to pay the fees. 5. I find that no proper consideration was given to the boys' attendance at an Islamic School after the parents agreed to pay and SSI have not provided a cogent and consistent reason why the Islamic school should be ruled out. 6. Neither Ms G nor anyone else from SSI told the parents that the decision had been made that the children would not be sent to the Islamic school. It seems that Ms G had concluded that it was acceptable to have not communicated this decision because, "The parents were fine sending children to any school that we recommend". 7. It is difficult to accept this proposition given the evidence of Mr Ali that he wanted the children at the Islamic school and Ms G's concession that she had not spoken to the parents about any school. 8. When asked several more questions about the Islamic School Ms G suggested that FACS had made the recommendation that the children not go to the Islamic School and that is the reason why SSI made the decision. 9. The confusion continued when Ms G then said, "They can go if it is paid because I know that the parental responsibility part of this aspect belongs to parents and they want children to attend this school so if they really strongly still want that to happen and pay the fee that is fine with us". 10. The evidence about the school is confused and confusing. I have not been given a cogent or consistent explanation as to why a decision was made not to send the children to an Islamic school. I make no finding as to whether attendance at the Islamic school is or is not in the best interests of the children. There has been no evidence beyond the parents' wishes in that regard. What is of concern, however, is that Ms G appears to be making it up as she goes along. I certainly left court on 21 August with the impression that the children would be going to an Islamic school in 2018 but since 24 August no inquiries have been made, no discussion has been had with anyone including the parents and SSI have simply made the decision without sound reasoning. 11. So, not only can I have no confidence that I know what the definitive SSI position is on this issue I can have no confidence in their decision-making process or their decisions. I have no confidence that SSI understand the concept of joint parental responsibility or the ability to put it into effect. The boys' activities 1. During her evidence on 24 August Ms G was asked about the boys' activities which she often referred to in the course of her evidence. However the only after‑school activity nominated by SSI was twice-weekly after-school care. 2. Ms G confirmed the children did not do any swimming lessons or any sort of classes, nor did they play any organised sport, such as soccer. As a Children's Court magistrate, I can take judicial notice of the fact that before and after-school care are most often used for parents who work or study outside of school hours. Although they obviously do activities at after school care it is not what is normally classed as an activity such as swimming lesson or soccer practice or dance class would be. It would be better characterised as child‑minding. 3. Ms G gave the following answers in her evidence: Q Do you know why the children go to after-school care? A Because the carers attend English classes at TAFE. We wanted them to improve their English. 1. As a consequence of this evidence Ms G was asked to find out when the carers started their English classes given the children were attending after-school care to accommodate those lessons. After her inquiry her evidence was that they had not started but had decided to start in February 2018. She said that SSI were paying for after-school care; the carers were not paying for it out of their allowance. 2. Ms N, caseworker at SSI, gave evidence that SSI were also paying for the carers to do courses and that is why the children were going to after-school care. She was not able to say what courses they were doing or when they started because the foster carers were not willing to discuss that information. 3. Ms G then gave evidence that conflicted with her earlier evidence. First of all she said that the carers were attending English classes at TAFE and that is why the after-school care fees were being paid. She then said that the carers did not say that they were attending TAFE but they were wishing to do so and SSI paid for the after-school care because it would give the carers the opportunity to go to TAFE and after-school care has many activities for the children and is good for them. 4. So the carers had told, presumably both Ms N and Ms G initially that they were going to TAFE when they were not. Ms G then changed her evidence once again and said that it was only one day per week that the children were going to after-school care, however from the documents tendered by the Secretary on the final day of the hearing it is clear that they children attend after‑school care three days per week. 5. Dr Banks was critical in his evidence regarding the children not having swimming lessons or taking part in any structured activities. Ms Westbury, the caseworker from Family and Community Services contacted the SSI worker after the matter was in court in August and told her that the children should do swimming lessons. Ms Westbury reported the caseworker from SSI told her that she then raised the issue of swimming lessons with the carers who said they were happy to do it and said that the carers offered the following explanation, The reason they haven't done so was because the children are very busy and so they were trying not to overload them with activities. 1. The information Ms Westbury was given was that they were very tired going to school and then to language school on Sunday and other activities, like family activities. She said the thing that stuck in her mind was that the boys were tired from going to school five days per week. 2. The children started swimming lessons on 17 October 2017 and SSI and the foster carers are sharing the cost. Ms G said she did not see there was a big need regarding sending the children to swimming because they were involved in other activities; they have, a formed group of friends and do activities regularly with them. This is another falsehood or exaggeration of Ms G. The only evidence of another activity is that the carers have a group of Muslim friends who get together monthly, though Ms G later said it was either fortnightly or monthly. This group was mentioned in the SSI documents produced to the Court as a gathering with a group who have children between three and ten where they hire halls or go for picnics once per month. 3. Ms G stated in her evidence that the children were sent to swimming lessons because it was made an issue in the court proceedings and not because SSI or the carers considered it was in the children's interest. 4. The excuse given for not doing swimming lessons (or other activities) was that the children were too tired. I consider this to be an extremely poor excuse, if not a lie. Many thousands of primary school children attend swimming lessons after school. Swimming lessons are also readily available on weekends at many centres. I am unwilling to accept that the children were too tired for swimming lessons, but not too tired for after-school care three days per week. After‑school care, of course, means that these carers have to offer less care to the children at no financial cost to themselves (since SSI were paying) and no additional work as they simply pick them up from school at a later time. The boys' sleeping arrangements 1. At the commencement of her evidence Ms G told the Court that she had seen where the children slept and she had "no concerns about the sleeping arrangements for the children". She did not accept Dr Banks concern that Sadiq was sleeping downstairs in a converted laundry room significantly away from the rest of the family. She said Sadiq was proud to have his own room. 2. I was shown photographs of Sadiq's bedroom and I asked why it contained a cot, not a bed. I was told by Ms G that it was because Sadiq was in a cot but that now he was in a bed. The evidence that he was sleeping in a bed at the time Ms G gave that evidence was not true and Ms G knew it was not true. 3. It was established on the evidence of Ms G and from the invoice for the purchase of beds produced by her that she knew that all three boys were sleeping in a cot until 7 September 2017. Beds were ordered for the children on 4 September 2017 and delivered three days later on the seventh. At that date Sadiq was six years and four months old; Aatif was five years and three months old and Abbad was three years and nine months old. 4. Ms G sought to justify Sadiq sleeping in a cot because he is "petite". She said that she was not sure whether he remained in a cot and the reason he remained in a cot was because of the cost of a bed. She said SSI paid for the beds when they were purchased on 4 September. She said she knew they were sleeping in cots approximately six months before it had been raised in court. Then, in answer to questions from Mr Sperling, she changed that evidence about how long she had known the children were sleeping in cots to an earlier time and that is 2016. 5. Ms G said in answer to the question that if she had known for at least six months that Sadiq was sleeping in a cot why she had not done something about it and she answered: When I first saw the cot in the room I was impressed with the way they presented it because they converted and made a room for Sadiq but then I mentioned about the cot. It took some time which should be addressed earlier. 1. Ms G said that in 2016 she had a conversation with the carers about getting a bed for Sadiq when she saw that he had been moved to a converted laundry room and he was still sleeping in a cot. In cross-examination by Mr Sperling the following exchange took place, "Q. Ma'am in relation to that did you say he should be in his own bed and not a cot? A. Not that way. I said, 'You can get single beds for the children and you're entitled to it.'. Q. And did you follow it up about whether he had received a single bed? A. Not exactly. 1. Ms G would not make any concession about the inappropriateness of Sadiq sleeping in a cot given his age. In that context she was asked whether 6 year old Sadiq would be embarrassed about sleeping in a cot when his friends from school came over to play. 2. Ms G told me that she was not sure that Sadiq had school friends come over to visit but she conceded that a child of his age "could" be embarrassed by sleeping in a cot. 3. Ms G's evidence is disturbing because these boys, who have no special needs, were made to sleep in cots. Mr Whelan submitted that I could not conclude this to be emotionally abusive because I have no evidence in that regard. He chose to call it "unusual" but explicable given Sadiq was petite. 4. In my view having a child of Sadiq's age, a child with no special needs, sleeping in a cot has the potential for being emotionally abusive. It is, I imagine, yet another point of difference for Sadiq amongst his peers. It adds to the concern that when Sadiq was three years and nine months old he was taken in the daytime to Dr Banks' assessment in a nappy. At the very least it raises the question of insight of these carers into the emotional needs of these children. 5. Ms G's evidence was vague and evasive but it is clear that once SSI knew the children were sleeping in cots, SSI did not consider it of any particular concern and took no action. SSI did not instruct the carers to get beds, they only asked or suggested. SSI did not follow this up. There is no evidence as to why the carers ignored the request of SSI and I do not know why that request was ignored for so long. 6. I was also deeply concerned that SSI did not believe that Sadiq had friends visit him at home and had no concerns about this. I would question why SSI did not call this into question. 7. It is highly concerning to me that Ms G did not tell the Court that the children had been sleeping in cots, instead she gave evidence there were no concerns. Either she did not consider it important enough to disclose to the Court or she was attempting to conceal this from the Court's consideration. Either way it is concerning. Life Story Work 1. In August of 2015 at the suggestion of Family and Community Services Ms G went with the carers to a seminar which included sessions on cultural maintenance. She went with them to translate and explain. Then on 30 May 2017 the carers went to a training session, again about maintaining cultural connections and Life Story work. 2. In her evidence on 24 August 2017 Ms G told the court she had attended the two day seminar with the carers on cultural connections and Life Story work in May 2017. 3. On 8 November 2017 Ms G gave evidence that it was important to have the Life Story book in hard copy as opposed to electronically. 4. She was then asked whether she had seen the children's Life Story books. 5. She said that they did not have one, even though the carers had been provided a big folder for that purpose. 6. Ms G then sought to excuse the failure of the carers to create a Life Story book and SSI's failure to insist that a book be worked on by stating the following: the carers find it hard to use the folder"; and it doesn't matter how you do it, you don't need to use the folder. 1. This second excuse was in direct contradiction to the evidence she had just given. 2. Ms G said she spoke to the carers about a year ago and they showed her the photos, videos etcetera on their phone and she recommended, not instructed them, to put them in a folder in case the phone is lost. They said they would do that but she had not checked. 3. Later in her evidence she confirmed that the children do not have a Life Story Book but they have access to the carer's phone. Ms G accepted it was the responsibility of SSI to ensure that the Life Story work is done. 4. It was not in issue in these proceedings that Life Story work is very important for children in care and these boys are no exception. 5. The carers have had training, at least in 2014 and 2017 on the importance of Life Story work and that presumably a Life Story book, as that is how it is done, a folder being given to every carer for that work. 6. Dr Banks said in 2015 he spoke to the foster carers about the importance of the Life Story books. 7. SSI have asked the foster carers to put the information in the folder. 8. Despite the training, despite the request and despite the explanation from Dr Banks, still the carers have failed to work on a Life Story book for these children. Again SSI failed to consider this important enough to follow up on; or important enough to direct their carers to produce, or have the case workers work on, a book with the children. I can have no confidence that the carers or SSI will remedy this, by producing or maintaining a Life Story book for these children. 9. The children have been with these carers for more than four years. The boys live with two adults who do not work and do not spend their time taking the children to activities. They have been to more than one training session on the importance of Life Story books; they have been asked to make a folder; they have been provided with the folder; they have been told what to do with the folder and they have not done it, and no reasonable explanation for this has been offered. SSI has taken no steps to do the folder nor taken any steps against the foster carers for their failure to do so. SSI has no realistic and workable plan to ensure the foster carers do the Life Story book. 10. In these circumstances I find that the children, if they remain living with their current carers, will have no Life Story Book. The question is whether this really matters; whether the lack of this Book will have any significant impact on the children. 11. The evidence in relation to this is from Dr Banks' cross-examination. Although his explanation is long it is instructive and needs to be considered in full. He was asked whether Life Story work was important and so important it should already have started, particularly for Sadiq. He answered: I think the discussion and evidence that came out from SSI yesterday that the foster carers can't produce a Life Story book two years after that assessment should be of significant concern to the Court. The fact that I went there in December of last year and looked at Abbad's bed and there are no – at that point no photos of the biological family no photos of his parents, biological parents, above his bed and yet for Aatif and Sadiq there were, but there's obviously a differential element given that, they've had Abbad from birth. They are, from my opinion, positioning themselves as Abbad's parents. 1. He was then asked about the importance of a Life Story book and he said, "…while it may seem such an innocuous thing… it's so powerful in its symbolic nature, particularly if the foster carers make it a living book and that it brings forward and maintains the child's stories of origin…. For Sadiq in the first instance the complexity of his, if you like, double rejection, is going to start to come into cognitive awareness from the age of about six to eight and then again from eight to twelve ….where he really starts to understand that he was rejected." [by his biological parents]… This will be in his cognitive schema that he was rejected by that part of the family then given to Mr and Mrs Ali, then the rest of the story unfolded, unfolding, and then obviously being removed from the Ali onwards. So he's got to contemplate all of those. He's then got to bring into his level of understanding the issues associated with the injuries and the notion that those injuries also have a rejecting element to it. And now we're at about age twelve, and this is where quite often males really start acting out…. So Sadiq's got all of this journey so that's the next decade of life work for him which is going to be just a roller coaster of challenges by virtue of the enormity of structural change that he's had to deal with. All of which contribute to his construction of identity, who he is, because our immediate step when we are asked our question of who we are is, 'Who am I individually?' and then, 'Who do I come from? Being my biological family. You have a foster care element interposed with that you already have that level of confusion and for Sadiq he's got two elements of family within that again; as well as obviously then the State system's involvement on top of that. So this poor little man has got a hell of a journey in front of him." 1. Dr Banks stated in relation to the Life Story work: I would've hoped that the foster carers had had professional training to develop it in the first instance, but more importantly I would have hoped that the professional training would have articulated the enormity of importance behind, as I said, something that appears so innocuous. That people could be quite dismissive about it and say, "It's just a photo album" and especially in this era of electronic memory recordings, so photos on computers and laptops and phones, photo albums are now becoming things in the bottom of the cupboard. So there is the Department and obviously NGOs have got to try and grapple with, "How do we keep these children's life stories real and visible as opposed to stored electronically, but invisible?". "How do we keep their understanding of biological families alive?". And as I said I cannot emphasise the importance of this enough. 1. My understanding of the submission of the Secretary and the ILR was that the information was held electronically and therefore the Court should not be too concerned about this issue. I reject those submissions in favour of the evidence of Dr Banks that the Book in and of itself is very important, and the failure to produce it, despite the ongoing training and requests, in light of neither of these carers working or going to English classes, is a significant failure on the part of the foster carers and there is a real and appreciable risk that this failure will have significant adverse consequences for the children in the long term. The Bangla School 1. The Bangla School was identified by Family and Community Services. The children are enrolled at age four. It is held every Sunday in term time for three hours and I believe it is about 26 kilometres from the carer's home. 2. Ms G gave evidence that it is very important for the children to learn their language and maintain their language. 3. Ms Westbury, during the course of the hearing, contacted the boys' teacher at the Bangla School and was told: * Sadiq rarely completed his homework; and * There were issues with attendance and lateness and the reason she had been given as to why they are always late, is that the boys are slow to wake up 1. Ms Westbury acknowledged that given SSI has case responsibility, it is SSI that should have been chasing up the school and addressing any concerns. 2. Ms G gave evidence that she was not aware that the children only attended about 80% of the time, that they were always late and that they were losing their language. She did not follow up their progress and attendance at school with either the carers or the school. She could not confirm her caseworkers did either, though she acknowledged it was their responsibility to do so. 3. From her answers it appears that she was not concerned about this too much as she said, "But may I say it's not a five day school." 4. When it was put to her that the teacher from the Bangla School's report that the children missed days; were regularly late and did not complete homework she said that, "Didn't concern me at all." Ms G expressed the view that the Bangla School is not necessary as it is not feasible to teach the children the language two hours a week. 5. She said she did know, it seems in 2015, that the children were not learning or improving at Bangla School, having been told this by the carers. Ms G was asked whether the school was contacted to verify this information, she said, "No." She was asked; Q: Did you organise any of your care workers to follow up with the Bangla School from that time through to now? A: No I didn't. Q. Why not? A: Because we were receiving information from the carers and we believe our carers." 1. This is yet another example of SSI not making any enquiries. SSI could not know without further investigation whether what they were told by the carers was true. It was possible that the carers no longer wanted to take the children. If it was true, given the importance of the language to the children, one would have thought that it would have been a priority to contact the school; identify the issues and then put a plan in place to address the issues. 2. Under cross-examination from Mr Sperling Ms G gave evidence that private tuition in the Bangla language would be a good idea to supplement Bangla School because it is not possible to develop language skills with only weekly Bangla School attendance when the language was not being used at home. 3. Ms G was then asked further about that, and said, that asking the carers to allocate every Sunday to Bangla School and in addition to ask the carers to accept a tutor attending their home would be too much to ask. It was raised with Ms G that this response suggested that she was worried about the imposition of a tutor on the carers, rather than considering the benefit to the children. Ms G's response was: Yes you can look from that way…. but also we need to take care of our carers so they can provide better care to the children. Potential for change 1. Ms G told the Court she does not tell the foster carers what to do, instead she "just works with the carers, so I don't tell them anything. I just, you know, request them and just kind of where needed educate…." 2. On further questioning Ms G changed her evidence and said that she tells the foster carers what they have to do if it is a legal requirement. She told them in relation to sourcing beds for the children, "You need to do it.". She told them the same about preparing the Life Story book and she then said she has told the carers multiple times, including last year, but they still have not done and she said, "We kind of argue." (This is in direct contradiction to her earlier evidence.) 3. Ms G was then asked, given she had asked the foster carers again and again, and they have not done what she had requested, how that issue was to be resolved and she replied: A: Talking to them again and again. Q Well that hasn't worked in the past, how is it going to work in the future? A. I believe with these carers if I just again go there as a manager, they will do it. 1. Unlike Ms G, I have no confidence that the carers will complete a Life Story Book, nor do I have any confidence that SSI will follow up on it, insist it be done or take steps to ensure that it is done. 2. If the children remain placed with their current carers they will have no appropriate Life Story Book. 3. Dr Banks was asked about whether carers should have training. He replied, "They should" but he went on to say, I should have evidenced the benefit of that training last year, after that two year intervention. So for the Court to be now saying they should have training, I'm still back to saying `yes' but it's two years too late and there should have been far greater work done, far sooner, such that both case worker and case work manager could have produced evidence in court to that effect but more importantly, I would've seen it on the ground, in the children's home last November. Conflict of Interest 1. The SSI caseworker and team allocated to the children are the same caseworker and team allocated to the foster carers. Ms G was asked about the potential conflict of interest in this situation as the best interests of the children and the best interests of the carers do not always coincide. 2. Like much of Ms G's evidence, her answers to these questions were not helpful. She offered the following: That could happen and it needs to be addressed when it happens. If it is really needed, you talk to the carers and you just, we do reviews with the carers, we do supervision with the carers and those things are addressed and the case workers need to bring it up. 1. Clearly the best interests of these children were to have appropriate bedding, photos on display of their family, life story books, tutoring, activities such as swimming, a focus in the home on speaking English. These are obviously not priorities for these foster carers and in relation to every single one of these examples SSI have placed the foster carers ahead of the children's best interests. 2. SSI do not have what I describe as a healthy scepticism in relation to what they are told by the carers. The manager, Ms G, said again and again, she believes what she's told by the carers. The result is that she does not ask more questions, does not look for objective evidence, does not investigate and importantly, does not follow up. This obviously serves the interests of the carers but does so to the detriment of the children's interests. 3. Mr Sperling raised with Ms G the allegation of the carers racism made by Dr Banks. Ms G's response was essentially that Dr Banks was at fault for, in effect, teasing the carers and she was going to put in a complaint against him. Dr Banks is a professional of the highest standing. He regularly appears in this Court, as a Children's Court Clinic clinician and as a privately engaged expert. He is very professional, respectful and thoughtful, which I think is borne out by the content of his reports and his presentation in this Court. Ms G made no attempt to contact Dr Banks, to discuss any of his concerns or recommendations. This is another example of Ms G accepting at face value whatever her carers tell her, to the detriment of the children, because by simply believing the carers she has ignored Dr Banks' concerns and no steps have been taken to address them. The submissions of the Secretary 1. The Secretary submits that it is difficult to form a view about the foster carers when the Court has not seen them. The Secretary accepts that the staff from SSI were not impressive witnesses and "did not do the foster carers any favours" 2. I agree it is difficult to form a view of carers who are not before the Court, however that is the position I am in, and so indeed is the Secretary, whose caseworkers have never met the carers. In order to assess the care given by the foster carers I must take into account the evidence of SSI who hold the information about them. In this case I do not need to rely solely on the information from SSI as I also have evidence about the quality of care they provide from Dr Banks. 3. The Secretary submits that in order to make an assessment of the care that the children are currently receiving I need to take into account the following and when I have done so I will be satisfied that they are receiving good quality care: * the commitment of the foster carers who have had all three children for all of these years and continue to be willing to have them long-term. * the school reports and day care reports which all refer positively to the children and their attendance, presentation and character, behaviour and demeanour * The medical reports which all indicate that the children's healthcare needs are all met. 1. I accept these submissions and I am satisfied that the children are in a stable placement where they are safe and their physical, educational and medical needs are adequately met. 2. The Secretary submits in relation to the Bangla school attendance, that it is no different to many other children involved who are enrolled. There is no evidence filed to support this submission and I note that the evidence is also that they always arrive late and without their homework being done. 3. The Secretary submits that even if I am not able to rely on the opinions of SSI, I can rely on the reports of the affection and attachment, which are positively reported on between the children and carers. 4. I accept that there are significant and positive attachments and affection between the children and their foster carers. I accept that Dr Banks makes very many comments throughout his reports about the positive relationship the boys have with their carers, including in his 2016 report where he describes the carers as attuned and attentive parents who appear committed and the children are strongly attached and well adjusted. 5. I accept too that there have been no Risk of Serious Harm Reports and that the Fostering Allowances that the carers receive are no difference to the Fostering Allowances available to other carers. 6. Although I accept that the carers have undertaken a significant amount of training there is no evidence that such training has led to positive changes for the children in the care of these carers. 7. The Secretary asks me to consider that the assessment of the carers covered the carers' attitudes towards Chinese people and the carers indicated that they would care for Chinese children. They were assessed to meet all the requirements to become foster carers and they have had that authorisation renewed. On the strength and quality of the evidence I have heard from Ms G and SSI I have little faith in the decision-making processes of that organisation. I prefer the clear, concise and well-reasoned opinions of Dr Banks and I cannot reject the notion that these carers are racist. 8. Mr Whelan asks me to take into account that although it's unusual for a child of Sadiq's age to be sleeping in a cot, this is the highest the Court could put it and I could not make a finding that this was an emotionally abusive action. Mr Whelan reminds me that there was an explanation for his remaining in a cot and that was because he was of small stature. 9. I do not accept Sadiq's size as a reasonable explanation for his being in a cot at age, almost six and a half. At the very least, leaving the children in cots displayed a lack of insight into the emotional needs of the children. 10. I am also reminded by Mr Whelan that the children are now going to swimming lessons. I note that this is only because Family and Community Services' caseworker intervened and only because of the court proceedings and not because SSI or the foster carers perceive the lessons to be in the children's interest 11. Mr Whelan also asks me to take into consideration that the Life Story work has been undertaken and is available, although digitally. I do not accept that that is sufficient for the reasons I have already set out. 12. I accept that the current placement is safe and currently stable and that the children's physical, medical and educational needs are adequately met and further that the evidence suggests that the boys' religious needs are also adequately met in their current placement. 13. The children have an attachment to their foster carers and their presentation and demeanour, educational progress and health all point to the children being well looked after. 14. On the evidence I also make the following findings in relation to the children's current placement: * given the lack of a Life Story Book, the failure to maintain the children's language, the failure of the carers to speak English to the children and the failures of the carers to include the natural family photos to an appropriate level in the home I cannot be satisfied that the children's cultural needs have been met by the foster carers. * SSI will not appropriately consult the parents and the parents will not be able to exercise their parental responsibility if the current orders are maintained. * SSI cannot be relied upon to make decisions that are in the best interests of the children as a result of; * shambolic decision-making * unwillingness to prioritise the needs of the children over the wishes of the carers * decisions being made on the basis of the carers' self-reporting without appropriate checks. 1. I find that : * the children will not have a range of structured activities to enhance their quality of life if they remain in their current placement. * SSI are not likely to exercise appropriate supervision or review of the children's circumstances * SSI are not likely to intervene when necessary and take appropriate action to ensure the children's needs are met if these needs conflict with the interests or wishes of the carers * the children will not have a Life Story Book. * the children will not be spoken to in English by the carers as recommended by Dr Banks and hence will likely be significantly negatively impacted by this. The children's Bangla language will not develop and they will lose the ability to communicate effectively with their extended family. For Sadiq this will include his natural parents. This is not considered to be of much importance to SSI. * SSI do not recognise and therefore will not address Sadiq's attachment issues. * The carers' insight into the emotional needs of the children is limited. In reaching this conclusion I rely on Sadiq being in nappies when he visited Dr Banks and all the children sleeping in cots until September 2017. 1. I find that the carers' commitment to provide more than an adequate standard of care is called into question by the following factors: * the carers response to the question regarding their reaction to the potential restoration * the children being placed in after school care three days a week when neither carer works * the children not having a Life Story book * the failure of the carers to involve the children in structured activities * the failure of the carers to get the children to the Bangla school on time * the failure of the carers to provide an environment which includes the children's natural family as advised was necessary * the carers unwillingness to comply with instructions or requests from SSI. * the carers racism * the carers provision differential treatment to the children, (I rely on Dr Banks' observations that the carers' favour Abbad). 1. Ms Westbury confirms that the parents and Minister had joint parental responsibility for religion and culture. Her evidence led me to conclude that the Minister has made no decision, either alone or in conjunction with Mr and Mrs Ali, in relation to this aspect of parental responsibility. It was clear from the evidence that the Secretary's delegate was confused as to who should be making the decisions. She considered it should be SSI who should be meeting with the parents about the decisions. The caseworker does not know the parents or children and has never attended any case planning reviews conducted by SSI. The only reason Family and Community Services are involved with these children is because there is an application before the Court. Even after the Children's Court proceedings were instituted the caseworker still had had no meetings with SSI and nor did she meet the children. Although the Family and Community Services caseworker has, during the course of these proceedings, intervened to address some of the issues raised, for example making enquiries of the Bangla school and making a request and not a direction that the children go to swimming lessons, these are ordinarily the responsibility of SSI and after these proceedings are completed the Secretary will play no role in the quality of the care that these children receive. 2. It appears that the only role the Secretary will play will be at an annual case planning review where he will have no direct knowledge of the children and the review will be largely reliant on the reporting from SSI, which, in my view, is unreliable. Once these proceedings are over, if the children remain in their placement no positive changes can be expected to improve the quality of the care these children are receiving. 3. I am bound to make a decision taking into account the objects and principles of the Act and that includes that in any decision concerning a child that I make the safety, welfare and well-being of the children is paramount. 4. It is not an issue in these proceedings that Mr and Mrs Ali deeply love their children and that they have done a massive amount of work to address the issues of concern. Mr Whelan on behalf of the Secretary commented in his submissions that it is not often that the level of engagement and the efforts made shown by these parents is seen post the making of final orders. An acknowledgment was also made of the progress Mrs Ali has made with her English. 5. Mr and Mrs Ali have shown an incredible commitment to the restoration of the boys. They have done what they have needed to do on their own and without the ongoing support and guidance of Community Services. Mr and Mrs Ali accept that they will require ongoing assistance. 6. The Secretary says that despite the gains made by the parents and their love and commitment to the children, the fact that the serious injuries to Sadiq remain unexplained, the ongoing risk of differential treatment to Sadiq, the parents' lack of parenting skills and the consequences and risks associated with the removing these children from a stable, long-standing placement where their needs are met and where they have positive attachment to an untested placement where they have no attachment, is not realistic and falls into the category of 'fanciful' as in Re Campbell. 7. I have made findings in these proceedings that there is no unacceptable risk in relation to physical harm to the children, differential treatment or of Sadiq or any unacceptable risk of harm because of the current lack of parenting skills. 8. I consider that Mr and Mrs Ali have the capacity to provide an adequate standard of care for the children and that they will accept and learn from service providers and improve their skills. 9. The children have attachments to their current carers, though on the basis of the evidence of Dr Banks, those attachments are not without issues. There is no attachment to the parents. It will be a very significant wrench to remove these children from the only home they have really ever known. It is a home where the majority of their needs are adequately met. However, there are significant issues with the current placement. I have set these out in my findings and do not need to repeat them here. 10. Those issues lead me to conclude that: * the children's cultural and the linguistic needs will not be met in their current placement and the children will lose their ability to fully engage with their extended family and for Sadiq with his natural parents if they continue in their placement; and * the children's medium to long term psychological health may be adversely affected because of the lack of Life Story work, the lack of attention to attachment issues and the carers poor insight to the emotional needs of the children. 1. There is always a risk of placement breakdown and this has to be factored into my assessment. The parents have proven their commitment to these children and I am very comfortably satisfied that that commitment will be to provide the very best care and offer the very best opportunities to the three children that they can. I am very comfortably satisfied that such commitment will be lifelong. 2. On the other hand, I do not have confidence in the level of commitment of the foster carers or their willingness to put the children's interests before their own interests and I have already set out the reasons I have reached this conclusion. 3. I have considered the factors set out in s90(6), the objects and principles of the Act and I find that there is a realistic possibility of restoration of these three boys to Mr and Mrs Ali and I direct the Secretary to prepare a Care Plan to reflect that finding. ********** 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: 10 August 2022