Children's Court New South Wales Medium Neutral Citation: Re Lucinda Porter (No 2) [2023] NSWChC 2 Hearing dates: 23 and 24 January 2023 Date of orders: 24 January 2023 Decision date: 24 January 2023 Jurisdiction: Care and protection Before: Children's Magistrate Sheedy Decision: Parental Responsibility of Lucinda to the Minister until the age of 18 Catchwords: CHILDREN – Care and Protection – Placement / Kinship Assessment Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Ms Samantha Cooper (Mother) Mr George Porter (Father) Lucinda Porter (Child) Mr and Mrs Grant (Foster Carers) Representation: Mr Higgins instructed by the Crown Solicitor Ms Callander for Ms Cooper Dr Ginges for Mr Porter Ms Woolfe for Mr Hill the Independent Legal Representative for Lucinda Mr and Mrs Grant, self-represented File Number(s): 2021/146969 Publication restriction: The names of the child and family members are pseudonyms and the town names have been changed. The DCJ Community Service Centre referred to in this judgment is not Lismore CSC. JUDGMENT 1. On 12 October 2022, following a lengthy hearing, I made a finding that there was no realistic possibility of restoration of Lucinda Porter, who was born on [ ] 2015, to her mother Ms Samantha Cooper or her father Mr George Porter. Ms Cooper is an Aboriginal woman. 2. Lucinda is an Aboriginal child with special needs. She has been diagnosed as having mild intellectual difficulty, ADHD, Moderate Receptive and Severe Expressive Language Delay with poor social language skills and habitual toe walking and has been prescribed Ritalin. Lucinda has both faecal and urine incontinence. In 2022, Lucinda was in Year 2 at school in a Learning Support Unit. 3. Lucinda was removed from the care of her mother on 19 May 2021 and placed with kinship carers. Those kinship carers advised they were unable to continue to provide care for Lucinda due to career progression and plans to relocate out of the area. The Department of Communities and Justice ('DCJ') offered support to the kinship carers to support the ongoing placement but the carers confirmed their decision to relinquish care. 4. Lucinda was then, on 17 September 2021, placed with non-Aboriginal foster carers, Mr and Mrs Grant. She remains in this placement where it is accepted that Lucinda is stable, secure and thriving. It is reported that Lucinda refers to Mrs Grant and Mr Grant as "mum and dad". 5. Ms Cooper lives in Lismore and Mr and Mrs Grant and Lucinda live in nearby Ballina. Mr Porter recently relocated and now lives in Coffs Harbour. 6. During the hearing of this matter in September 2022, the Court was told that Lucinda's wish was to return to the care of her mother. It was not in dispute in that hearing that there was a loving bond between mother and daughter. 7. Lucinda has two older brothers, Fred and Jay. The boys live in Dubbo with their long-term carers. 8. In the Amended Care Plan filed by DCJ on 31 August 2022, and relied on by the Secretary during the September 2022 hearing, the following was written under the heading 'What is the proposed permanent placement for Lucinda Charlie May Porter?' At this time Lucinda will remain with Mr and Mrs Grant in the DCJ authorised foster placement. This is at the request of Ms Cooper and Mr Porter also. On 8 August 2020 a Family Group Conference was held in Lismore for the purpose of establishing relative/kinship placement and connection for Lucinda. In attendance at the FGC were Ms Cooper, Mr Porter, maternal grandmother Lisa Christie and her partner Larry Christie, maternal aunt Ms Paula Purcell and her partner Karen Elliot, maternal great-uncle and aunt Mr Edward Cooper and Ms Elaine Sinclair and paternal aunt Ms Penny Slater and Mrs Grant. The outcome of the FGC was that all attendees agreed that it is in Lucinda's best interest to remain in her current placement with Mrs Grant and Mr Grant until final orders are made. Further to the outcome of Lucinda remaining in her current placement all attendees advised that they felt that it was not in Lucinda's best interest to be placed with Ms Christie and Mr Christie in South Australia. This decision was made due to the fractured relationship of Ms Cooper and Ms Coughlin and the likely impact of Lucinda's access and relationship with her siblings Fred and Jay Porter and her parents. DCJ support this family led decision and will not be further pursuing authorisation of Ms Coughlin and Mr Coughlin however will continue to support Lucinda's relationship with Ms Coughlin and Mr Coughlin through FaceTime contact and face-to-face where practical. Further outcome of the FGC was that if Lucinda is not restored to her parent's care, the family wish for Lucinda to remain in her current placement with Mrs Grant and Mr Grant. DCJ will progress with suitability assessments for Ms Purcell and Ms Elliot who reside in the Wollongong area. Mr Edward Cooper and Ms Elaine Sinclair who reside in Port Macquarie, will also be assessed for suitability to provide care for respite care to Lucinda to support her connection to family and culture. In the event that family/kinship assessments are conducted in (sic) long-term placement is not recommended, DCJ would seek ACAP [the Aboriginal Consultation Advisory Panel] endorsement for Lucinda to remain with her current carers to provide consistency and connection to Country and family. Mrs Grant has advised she and Mr Grant are willing and able to provide long-term care for Lucinda if required….. The placement for Lucinda needs to be stable, long-term and nurturing. Lucinda has medical, psychological and developmental needs that need to be met. Lucinda needs her care or carers to have the ability to meet her needs and support her as she grows. Lucinda will be encouraged and supported to be reconnected with her siblings, extended family and her culture. 1. On 12 October 2022, after the finding of the Court that there was no realistic possibility of restoration of Lucinda to her parents, the Court ordered an updated Care Plan, made directions for responses to that amended Care Plan from the parents and set the matter down on 2 December 2022, expecting to be in a position on that day to approve the Care Plan and make final orders. 2. In her affidavit of 1 November 2022, the DCJ Caseworker, Ms [ ] deposed the following in relation to Lucinda's placement: * On 26 September 2022 an assessor from [a company that undertakes assessments], [ ] provided a report to DCJ recommending Mr Cooper and Ms Sinclair be authorised as either long term or respite carers. A list of recommended supports for Lucinda and Mr Cooper and Ms Sinclair were included in the report. * Ms Cooper opposed the move to Port Macquarie and wanted Lucinda to remain with Mr and Mrs Grant because she was doing well in their care, was settled and closer to Ms Cooper and to her brothers. Ms Cooper stated she did not want Lucinda "in Port Macquarie with Edward and Elaine." Ms Cooper maintained her opposition to the move and told DCJ that Lucinda would be harmed by such a move * Ms Cooper told DCJ that neither Mr Cooper nor Ms Sinclair are Aboriginal * Mr and Mrs Grant confirmed they were willing to offer long term care to Lucinda and made multiple approaches to the caseworkers arguing that a move would be contrary to Lucinda's best interests * Mrs Grant opposed the move on the basis that Lucinda was doing very well in her care, was securely attached to them, are closer to Ms Cooper and Lucinda's brothers and other family and the move would negatively impact her. 1. The Care Plan, filed on 31 August 2022, stated that the outcome of the Family Group Conference was that, if Lucinda was not restored to her parent's care, the family's wish was for Lucinda to remain in her current placement with Mrs Grant and Mr Grant. It stated too that Mr Edward Cooper and Ms Elaine Sinclair who reside in Port Macquarie, would also be assessed for suitability to provide respite care to Lucinda to support her connection to family and culture. 2. The Care Plan filed on 14 November 2022 proposed Mr Cooper and Ms Sinclair as long-term kinship carers. In formulating this plan DCJ relied on a Kinship Carer Assessment undertaken by [ ] an Independent Consulting Assessor for [a company that undertakes assessments] ("the assessor"). The report of [ ] assessment dated 26 September 2022 ('the Report') was commissioned by DCJ. 3. The Report referenced a referral, however no referral was annexed to the Report nor otherwise filed with the Court. Neither did the assessor reference in the body of her Report the terms of the assessment she was asked to complete, simply stating "DCJ requested an assessment of Elaine and Edward for their great niece, Lucinda Porter (seven years)." 4. The only reference the assessor made to background material in the Report was information she obtained when speaking to the caseworker and Manager Casework. I assume therefore that the assessor was not provided with any documents from DCJ. 5. The assessor had one interview with Mr Cooper and Ms Sinclair on 17 September 2022 and spoke to Mrs Grant on the telephone on one occasion on 26 September 2022. 6. The information collected by the assessor from Mr Cooper and Ms Sinclair included: * Mr Cooper stated the family in Lismore can't care for Lucinda because "they can't take Sammi hounding them all the time" * Mr Cooper's comments on his relationship with Ms Cooper: * "I don't get on well with Sammi. I had to toss her out of my mum's house when Mum was sick with dementia" * He is frustrated that Ms Cooper parents the way she does * "Mum raised her from a baby because Lisa didn't want her. Mum gave her everything and to see someone treat their own kids like that, someone who had a good life, is wrong" * Mr Cooper and Ms Sinclair have cared for Ms Sinclair's niece and for Mr Cooper's granddaughter, Jessica in the past. They cared for Jessica for six months and then for one and a half years. Jessica left on both occasions to return to live with her other grandparents. The placements were arranged by Queensland child protection authorities * In recent times they have met Lucinda once * Mr Cooper and Ms Sinclair had a child Roger, now deceased, who had ADHD and one of their grandsons has ADHD as does Mr Cooper's nephew * Mr Cooper, in response to the assessor's question, what did they know about Lucinda stated that "she has a delay in learning" Mr Cooper stated he feels this delay is due to Lucinda missing school * Mr Cooper said that the carer told him Lucinda picks things up but she is behind in her development. After this the assessor states that Mr Cooper provided the example that "she has never had friends before because she never left the room with her mother. She had never interacted with other children" * Mr Cooper and Ms Sinclair did not know if services were involved in relation to Lucinda's delay * Mr Cooper and Ms Sinclair visit Lismore regularly, before COVID every six weeks. They would be willing to supervise visits with Ms Cooper but would not feel comfortable supervising visits with Mr Porter as they had only met him a few months previously * Ms Sinclair had not really thought about how she would parent Lucinda * Ms Sinclair spoke about her culture stating "I found out last year that my grandfather [from Tasmania] was Aboriginal. The aunties kept it a secret because they felt it was shame." Ms Sinclair was struggling to obtain more information from Tasmania but said her sister has gathered all of the information * Ms Sinclair has diabetes and is on "low medication" for this and does not feel it would impact her ability to care for Lucinda * Mr Cooper has no health issues. He smokes approximately one and a half packets of cigarettes a day * Neither Ms Sinclair nor Mr Cooper had considered the consequences for Lucinda "if something medical happened for them" but agreed with one another that "there is heaps of family to help" 1. The assessor asked Mr Cooper and Ms Sinclair how they would manage a restoration to Lucinda's mother, though it is not clear why such a question was asked given there is no plan for restoration. 2. On 26 September 2022, the assessor spoke only with Ms Sinclair as to how she would respond to Lucinda's behaviours such as incontinence and screaming. 3. The assessor highlighted a strength of the placement with Mr Cooper and Ms Sinclair was that Lucinda would continue to live on Country, as she does in her current placement and that Ms Sinclair "has recently discover that her grandfather was Aboriginal and is trying to explore and gather more information about her culture. While she has not personally engaged in culture in her life, as she was not aware, both Elaine and Edward are supportive of ensuring Lucinda does." 4. The report made the following recommendation: It is recommended the applicants, Elaine Sinclair and Edward Cooper, are authorised to care for the child, Lucinda Porter, on either a respite or long-term basis. To support the placement, the following considerations are suggested: DCJ to progress functional assessments through occupational therapy and speech therapy to assist with any NDIS applications DCJ to support Elaine and Edward to receive psycho-education around the neurobiology of trauma, impact of trauma on attachment, development and relational templates and engage with services to support the development of therapeutic parenting strategies DCJ to provide in-depth cultural planning to ensure that Lucinda can connect to culture and grow in her culture DCJ to provide Elaine and Edward detailed information around Lucinda's developmental needs and caring needs DCJ to arrange and fund grief and loss counselling for Lucinda should a placement change occur DCJ to consider implementation of therapeutic services for Lucinda to assist with her early trauma experiences. Services that are skilled in developmental trauma are recommended 1. Although the assessor recommended that Mr Cooper and Ms Sinclair be approved as long-term carers and/or respite carers for Lucinda, it was clear that she was not recommending that Lucinda be moved to their care. The assessor wrote: "Any move from her carers has the potential to result in attachment disruption and factor that needs to be considered and given weight when considering placement change." "It is recommended that careful consideration is given to any placement change, as this will impact on her attachment relationships and likely contribute to grief and loss for Lucinda." 1. I was not persuaded that I could rely on the placement assessment and find that long term placement with Mr Cooper and Ms Sinclair was appropriate for Lucinda for reasons including the following: 1. The report relied almost solely on self-reporting by Mr Cooper and Ms Sinclair. 2. Mr Cooper on multiple occasions expressed negative comments about Ms Cooper yet these comments were not explored particularly in relation to how Mr Cooper's negative views of her mother may affect Lucinda. 3. Mr Cooper is a 67-year-old man who has been a lifelong smoker and currently smokes 1.5 packets of cigarettes a day. Ms Sinclair is a 65-year-old woman who has diabetes, which she reports is controlled. There is no medical evidence to give comfort to them being sufficiently healthy to provide the now 7-year-old Lucinda with safe and effective care for the next decade. 4. No succession plan was explored sufficiently, particularly considering the age of the carers and no medical evidence as to the state of their health. The proposed carers told the assessor that there were plenty of people to step in to care for Lucinda, if medically, they were no longer able to provide care. The assessor did not probe into the veracity of this statement in circumstances where DCJ had undertaken extensive family finding with no one found suitable who was willing to provide care for Lucinda. 5. Ms Cooper objected to Lucinda's placement with Mr Cooper on the basis that the child Jessica who had been in the care of Mr Cooper and Ms Sinclair had left due to ill-treatment by them yet no inquiries had been made to check the veracity of Ms Cooper's allegations. 6. Mr Cooper was noted to be of the view that Lucinda's disabilities may be able to be overcome by going to school and having friends: The assessor asked them what they know about Lucinda and Edward responded "She is learning to ride a bike at the moment. She has a delay in learning" and he feels that this is due to her missing school. He added that it was not known that she needed glasses and he feels now that she has them this will help: "The carer said that she picks things up, she is just behind in her development. Edward provided the example "She has never had friends before because she never left the room with her mother. She had never interacted with other children." Elaine and Edward are not sure If services are involved. 1. Mr Cooper and Ms Sinclair were not aware of the level of services Lucinda required to address her special needs. 2. Despite Mr Cooper's apparent lack of understanding of Lucinda's special needs and the level of services that need to be engaged with for Lucinda there was no probing of his and Ms Sinclair's expectations of or skills to parent Lucinda as a child with ongoing special needs, which in part, manifest as behavioural issues. Neither was there appropriate exploration with Mr Cooper and Ms Sinclair of their capacity or commitment to the number of appointments Lucinda has to address her special needs. 1. A recommendation that Mr Cooper and Ms Sinclair be approved as long-term placement or respite carers was made by the assessor even though it was "apparent that Elaine and Edward do not have a lot of up-to-date information on how Lucinda is going, her developmental needs, her care needs and challenges." The recommendations of the Report suggest that the carers be given information about Lucinda's special needs after she is placed. I am unable to understand how a long-term placement can be recommended with any confidence unless the proposed carers are aware of the needs of the particular child and the assessor assesses the proposed carers have both the skills and the commitment to provide a long-term home for that child, taking account of their special needs. Placing a child without full disclosure of their needs would increase the chances of that placement failing with all the consequent harm to the child. 2. On 1 November 2022 the Aboriginal Consultation Advisory Panel ('ACAP') met, and the caseworker provided ACAP with the following information: * "Assessment has occurred (I assume the reference is to the [a company that undertakes assessments]'s assessment) with outcome of recommendations for maternal great Uncle Edward Cooper and his partner Elaine Sinclair to be authorised and to provide long term care for Lucinda." * "Edward Cooper's partner Elaine identifies as of Aboriginal Heritage" * Ms Cooper wanted Lucinda to remain in her current placement as this was closer to her and Lucinda's brothers * Mr and Mrs Grant continue to be willing to care and Lucinda where she has been settled and progressed well at home and school and Mrs Grant feels Lucinda has developed a strong attachment to herself and her family 1. It is in fact a misrepresentation to state that the assessor recommended Mr Edward and Ms Sinclair as long-term carers. There was no such recommendation. The recommendation was that they be authorised to be long term and/or respite carers. There is a subtle but important difference. The assessor's conclusion was that, although Mr Cooper and Ms Sinclair could be authorised as long-term carers, careful consideration needed to be given to whether moving Lucinda was in her best interest. The potential placement with Elaine and Edward presents with many strengths…and it is recommended that Elaine and Edward are approved as long-term carers and/or respite carers for Lucinda. It is recommended that careful consideration is given to any placement change, as this will impact on her attachment relationships and likely contribute to grief and loss for Lucinda. If the decision is made for a placement change, a detailed transition plan is recommended that is slow, allowing for relationships, trust and a sense of safety and security to be developed. 1. In the referral and background information document prepared by DCJ to ACAP, in advance of the 1 November 2022 meeting, it states that: Elaine identifies as Aboriginal however is wanting to follow up her Aboriginality confirmation as she does not have it. 1. The caseworker then stated that the outcome from the ACAP consultation was that it was in Lucinda's best interest that she is transitioned to live with Mr Cooper and Ms Sinclair in Port Macquarie. The caseworker then stated: ACAP were pleased that a stable long-term relative/kinship placement has been established for Lucinda and that her needs both personally and culturally will be met. It was noted that Mr Cooper does not identify as Aboriginal however he is willing to support Lucinda's cultural needs and for her to grow and understand her identity and learn about her culture. Ms Sinclair is Aboriginal and noted throughout the assessment that she is willing and driven to learn more about her own cultural (sic) alongside Lucinda and support Lucinda as she grows to maintain her identity, connection and culture. Mr Cooper and Ms Sinclair have identified a strong family network around them who Lucinda will have the opportunity to expand her network and grow with family around her. 1. On 14 November 2022, the Secretary filed an Amended Care Plan and stated under the heading 'What is the proposed permanent placement for Lucinda Charlie May Porter?' Lucinda's maternal great-uncle and Mr Edward Cooper and great aunt Ms Elaine Sinclair have been fully assessed and authorised to provide long-term care for Lucinda as relative/kinship carers. Mr Cooper and Ms Sinclair will be able to provide a placement that is stable, long-term and nurturing. Mr Cooper and Ms Sinclair will be able to ensure that Lucinda has her medical, psychological, and developmental needs met. Lucinda will be encouraged and supported to be reconnected with her siblings, extended family, and her culture. Mrs Grant has advised she and Mr Grant would like to remain an important part of Lucinda's life and will be able to provide respite care for Lucinda and assist with Family Time visits where possible. Lucinda will be supported by DCJ, her current carers and Mr Cooper and Ms Sinclair to transition fully to their care before Christmas….. Lucinda will be supported to see her mother during December prior to Christmas and settling in. DCJ will support Mr Edward Cooper and Ms Elaine Sinclair to transport Lucinda back to Ballina and Lismore for family time. 1. It is unclear why, on 1 November 2022, Ms Sinclair is referred to as Aboriginal, yet in the Cultural Plan, a part of the Amended Care Plan filed just two weeks later, on 14 November 2022, she is described as Australian, not Aboriginal. 2. Although the permanency plan presented to the Court during the September 2022 hearing provided that Lucinda would not be placed with Mr Cooper and Ms Sinclair, and although Ms Cooper vehemently opposed Lucinda's move to Port Macquarie, and although the matter was listed before the Court to consider the permanency plan on Friday 2 December 2022, on Monday 28 November 2022 the DCJ caseworker met with Lucinda at school and explained to her that she would not be returning to live with her parents and instead would be going to live with a new family. 3. The DCJ caseworker must have known that Lucinda being told she was to be removed from Mr and Mrs Grant whom she loves and refers to as 'mum and dad' and moved to live with people she barely knows would be highly distressing. The caseworker however, knowing this and knowing that this child has special needs, chose to impart this information to Lucinda without Mr or Mrs Grant being present. In her affidavit the caseworker stated she had given Lucinda "the choice" to have a teacher present at their talk but Lucinda declined the offer. I find it extraordinary that a 7-year-old with special needs who does not know what information is about to be imparted to her should be given the choice whether she has a trusted adult with her when hears potentially devastating news. 4. On 28 November 2022, Mrs Grant sent a text to the caseworker asking when DCJ were having the conversation with Lucinda that she was to be moved. 5. The caseworker responded, "I spoke with Lucinda today and gave her some books to explain." 6. Mrs Grant responded with "we wanted to be there when you spoke to Lucinda about her move, we have no idea what he said to her and she can't read, she would be very confused" and "Once again this has been handled badly." 7. The Court had made a finding in October 2022 that Lucinda was not to go back to the care of her parents. The matter was listed for consideration of Lucinda's permanency plan and final orders on 2 December 2022. There was no plan for an immediate transition to the Secretary's proposed long-term carers in Port Macquarie. There is no apparent valid reason for Lucinda to be told she is moving before the permanency plan was approved by the Court and nor can there be any valid reason for Lucinda being told such news without one of her carers with her or at the very least a trusted adult such as a teacher. 8. DCJ did not then contact Mrs Grant until 13 December 2022 to make inquiries as to Lucinda's welfare. The caseworker contacted Mrs Grant by phone to discuss how Lucinda was doing after having told Lucinda she was moving. Mrs Grant advised the caseworker that Lucinda was experiencing incontinence again. 9. In Mrs Grant's affidavit sworn 12 January 2023, she set out Lucinda's reaction to the news she was moving delivered to her on 28 November 2022. Lucinda expresses strong views to stay in our care. I recall Lucinda was very emotional when she was told she was leaving our care to go to live with a family member she did not remember. Lucinda then started to soil herself and have emotional outbursts at home and at school. She appeared not to cope (sic) this information and the news was quite traumatic for Lucinda. When we raised her behaviour with her teaches and the school, they reported Lucinda's behaviour had really regressed and she had become defiant when at school. 1. On 2 December 2022, DCJ asked me to make a finding that permanency planning had been appropriately and adequately addressed and to make a final order allocating parental responsibility to the Minister until Lucinda turns 18. The parents' lawyers indicated their client's consent to the findings and order and Lucinda's Independent Legal Representative ('ILR') also said he consented, though with reservation regarding Lucinda's move to Port Macquarie. 2. No cogent explanation was forthcoming as to the basis on which the mother consented to the order when the evidence filed was clear that Ms Cooper was consistently and vehemently opposed to Lucinda's move. 3. I was not persuaded on the evidence before me that a move to Port Macquarie was in Lucinda's best interest and I refused to make the order sought. I made filing directions and put the matter over for hearing, on submissions, on the issue of placement on 19 December 2022. 4. On 13 December 2022, the DCJ caseworker [ ] filed a further affidavit in which she deposed: * Lucinda first met Mr Cooper and Ms Sinclair in August 2022 when they attended the Family Group Conference. She met them a second time on 1 December 2022 * Ms Cooper continued telling DCJ that 1. she was opposed to Lucinda moving to Port Macquarie 1. wanted Lucinda to remain with Mr and Mrs Grant 2. the proposed carers did not know Lucinda 3. that she had nothing nice to say about Mr Cooper * Mr Cooper has been violent and specifically he has been violent to Jessica a child he had in his care between 2009 and 2012 in a family arrangement * Mr Cooper denied any violence towards Jessica * Contact for Ms Cooper proposed for 2023 with Lucinda in Port Macquarie is 6 visits. Three of the six visits are between Lucinda and Ms Cooper only, and the other three will also include Mr Porter, Fred and Jay. All visits are to be supervised by DCJ. The longest visit scheduled is three hours * Mr and Mrs Grant were now supportive of Lucinda transitioning to Port Macquarie 1. In the caseworker's affidavit of 13 December 2022, she stated that: It is the Department's position that the transitioning and placement of Lucinda with family members in Port Macquarie will be in keeping with her best interests as it follows the ACAP recommendations as per her placement which has a preference for family so that she remains connected to her biological identity and culture. 1. If it is indeed correct that DCJ has made the decision to move Lucinda "as it follows the ACAP recommendation," then such a decision is shocking. ACAP's recommendation was made after being provided with extremely limited information and no access to source material or documents. The limited information ACAP was given was curated by DCJ and some of the most material information (that is that the assessment recommended placement in Port Macquarie) was incorrect. It is unfathomable that such a complex decision and a decision with life-long consequences for a seven-year-old child would be made with such little consideration. 2. When the matter came on for hearing on 19 December 2023, DCJ again asked for a finding that permanency planning was appropriately and adequately addressed and a final order of parental responsibility to the Minister to 18. I asked DCJ for evidence of any balancing exercise that had been undertaken by the case work team in relation to the decision to move Lucinda from her current placement to Port Macquarie. There was no such evidence. 3. Undoubtedly the decision to leave Lucinda in her current placement or to move her to a family placement was not a straightforward decision as there were advantages and disadvantages to each option. To be able to properly weigh the advantages and disadvantages of each option there must surely have to be an assessment undertaken which is both comprehensive and reliable. 4. It appears that the main advantages to Lucinda in moving to Port Macquarie were that she would be with kin and that her great uncle's partner had recently identified as Aboriginal. These advantages are substantial. However, nowhere in the Secretary's material were the limitations of the assessment of Mr Cooper and Ms Sinclair acknowledged nor addressed or considered in any balancing exercise. Nowhere in the Secretary's material could I find that the advantages to Lucinda remaining in her current placement were properly considered. Those advantages include that she is settled, happy and thriving in her current placement. Lucinda is reported to have a strong attachment to her carers and calls them mum and dad. She has settled into her school and is happy in her school community. Lucinda has special needs and many appointments to address those needs. Mr and Mrs Grant have already proven that they are able to provide the necessary level of care to Lucinda and provide for all her appointments. The placement is strongly supported by Ms Cooper. Ms Cooper has a good relationship with Mr and Mrs Grant and trusts them to provide good care for Lucinda. During the hearing there was undisputed evidence that Lucinda wanted to live with her mother and loves her mother very dearly. Her relationship with her mother is very important to her, as is her relationship with her brothers. Lucinda's placement with Mr and Mrs Grant is geographically close to Ms Cooper and to Lucinda's two brothers. Mr and Mrs Grant and Lucinda's brother's carers have a good relationship allowing for informal contact between the siblings. Of course, the placement is not a kindship placement and importantly it is not a culturally appropriate placement. 5. The placement principles for Lucinda are contained in the Children and Young Persons (Care and Protection) Act 1998 ('the Act'). They are expressed to be subject to the Objects contained in section 8 and the Principles contained in section 9. The Principle contained in section 9(1) of the Act is that in any action or decision concerning Lucinda, her safety, welfare and well-being of the child are paramount. This means for Lucinda that the existence of a kinship placement is not the only consideration in deciding placement. All of Lucinda's circumstances should be considered. Different factors may be weighted differently in the decision making, but they must all be considered. In Lucinda's case I cannot find the evidence that the Secretary considered and weighed in the balance all the relevant factors. 6. At the beginning of the hearing on 19 December 2022, DCJ presented Mr Cooper and Ms Sinclair as the only viable option for placement for Lucinda deposing that Mr and Mrs Grant no longer wished to care for Lucinda and, further, that they supported Lucinda's move to Port Macquarie. There was no evidence as to why Mr and Mrs Grant, who had been adamant that Lucinda's best interest would not be served by a move to Port Macquarie, were said to now be supporting the move. 7. Mr Hill, Lucinda's ILR, stated that he had consented to the permanency plan that involved Lucinda moving to Port Macquarie because he understood from the caseworker's affidavit that Mr and Mrs Grant were moving and were no longer in a position to care for Lucinda. 8. Mr Hill, during a short adjournment on 19 December 2022, contacted Mrs Grant. He then reported that Mrs Grant told him she and her husband do indeed want to care for Lucinda long term. Furthermore, she told Mr Hill that she had lodged a complaint with DCJ regarding the way the matter had been handled. She also told Mr Hill that DCJ had organised the move to take place that day at 1pm and the Port Macquarie carers were on their way to pick Lucinda up to take her to live with them in Port Macquarie (this report from Mr Hill took place shortly after 1pm). 9. I expressed my shock to Mr Duce, solicitor for DCJ, that Lucinda's removal to Port Macquarie had been arranged on the very day the Court was considering the question whether that move was in Lucinda's best interest, and indeed even before the end of the Court day. It was extraordinary that DCJ would do this even though Lucinda had only met the carers twice and their own filed evidence was that a transition should be planned. If the decision is made for a placement change, a detailed transition plan is recommended that is slow, allowing for relationships, trust and a sense of safety and security to be developed. [Report of [a company that undertakes assessments[, 26 September 2022 at page 18.] 1. Mr Hill responded to the proposal: Well, your honour, I'm most concerned. I was led to believe that the Grants were moving away from the area and that was in the November affidavit. In that in the December affidavit, that they had withdrawn any application, withdrawn any interest in having Lucinda in their care. So, I said this morning when you asked me the first time, if transition had to occur that occur as soon as possible, but that was on the proposition that it had to occur. It seems to me now that it's in Lucinda's best interests to remain where she is. Mr and Mrs Grant by all accounts have been doing a good job and there are various risks with the transition to Port Macquarie, which I don't think I need to go into at this point…. … I think that the transition should certainly not occur ahead of any decision and it is not in Lucinda's best interest to go to an elderly couple that she has met exactly twice at this point in time. 1. DCJ then agreed that the transition to Port Macquarie would not proceed until the Court had made a determination regarding permanency and that DCJ needed to file further evidence. 2. Mrs Grant told Mr Hill that she was unaware she and Mr Grant could make an application to join the proceedings and seek to have Lucinda remain in their care. On 19 December 2022 I directed the Secretary to give Mr and Mrs Grant notice pursuant to section 87 of the Act to allow Mr and Mrs Grant an opportunity to be heard in Court. This notice was given to them on 5 January 2023. 3. The matter was then scheduled for hearing on 23 and 24 January 2023 at Lismore. The hearing was to consider the adequacy of the assessment of the proposed Port Macquarie kinship carers and ultimately which placement was in Lucinda's best interest. It was intended that both the assessor and the Manager Casework from DCJ would give evidence. 4. On 16 January 2023, Mr and Mrs Grant filed an application seeking to become parties to the proceedings to seek parental responsibility for Lucinda. Their application was granted. 5. On 20 January 2023, Ms Cooper made an application for an Assessment Order, seeking to have Mr and Mrs Grant's parenting capacity assessed by the Children's Court Clinic. 6. The Assessment Application was listed urgently on 20 January 2023 and that hearing DCJ informed the Court that Mr Cooper and Ms Sinclair had been in contact, expressing their reservations about having Lucinda in their care. As a result of this information the Assessment Application was, by consent, adjourned to 23 January 2023. 7. On 23 January 2023, the first day of the hearing regarding permanency planning, the Secretary advised the Court that Mr Cooper and Ms Sinclair had decided to no longer pursue placement of Lucinda to their care. 8. The Secretary informed the Court that since the Secretary had learned of Mr Cooper and Ms Sinclair's decision on 20 January 2023, further inquiries of family were made to ascertain updated information regarding whether there was any possibility of a family placement. The Secretary confirmed there were no suitable family carers who were willing to care for Lucinda. 9. It was DCJ's case that there were no Aboriginal carers available to care for Lucinda and the only available long-term placement was with Mr and Mrs Grant. In these circumstances the Secretary proposed that there should be an order of parental responsibility to the Minister and that Lucinda be placed with Mr and Mrs Grant as long-term foster carers. 10. An Amended Care Plan and comprehensive Cultural Plan were then filed and served. The Care Plan and Cultural Plan provided for significant ongoing contact for Lucinda to her mother and brothers and contact with her father. There is a comprehensive plan to ensure that Lucinda continues contact with her Aboriginal family, culture and community. The Care Plan and Cultural Plan will be taken to ACAP by DCJ at the first available opportunity. 11. Mr and Mrs Grant were content to be the authorised long-term carers for Lucinda under the parental responsibility of the Minister on the basis that Lucinda will not be moved (unless there was an emergency) without sufficient notice being given to Mr and Mrs Grant to allow them to make an application to the Children's Court. 12. The Court, with the consent of all the parties, made a finding that on the basis of the Amended Care Plan and Cultural Plan that permanency planning had been appropriately and adequately addressed. A final order was made for parental responsibility to the Minister to 18 with reports back to the Court pursuant to section 82 of the Act on a range of issues including the recommendations from ACAP. Kinship/Placement Assessments 1. In this case I considered the kinship placement assessment undertaken by a private assessor to be unreliable for reasons I have outlined. It is appropriate in the circumstances to make some comment regarding the assessment and decision making in this case. 2. The Children's Court relies heavily on kinship/placement assessments in making decisions in care proceedings. It should be borne in mind that a superficial or substandard assessments has the very real prospect of leading to decisions by the Secretary and/or by the Court that are not in the child's best interest. The duty to be objective and thorough and not to mislead is vital in assessments because the child's future welfare, which is a matter of extreme importance, is at stake. 3. A cursory, superficial or substandard placement assessment may result in a child being wrongly placed and thereby unnecessarily being put at risk or of placement breakdown. 4. The damage done to a child by relying on an opinion which is formulated with incomplete or incorrect information has the potential to be wrong and have adverse consequences for that child which are severe and potentially irreversible. 5. Care must be taken by assessors, before expressing an opinion, to take all the relevant and objectively justifiable material fully into account. 6. Placement assessments must be undertaken by suitably qualified persons who have all the necessary background material and have clear instructions as to the issues to be assessed. An assessor must be clear when a particular question or issue falls outside of their expertise. If the assessor does not have all the necessary material or information, then the assessor must state that any conclusion or recommendation is no more than provisional. 7. A placement/kinship assessment must comprise of more than the recording of information given to the assessor. There must surely be probing, challenges when necessary, corroboration sought when appropriate, and objective evidence considered. There must be some analysis and reasoning based on the assessor's expertise. 8. There is no reason why a placement/kinship assessment undertaken by a person purporting to be an expert in assessments should not comply with the ordinary rules of all experts who provide reports to the Children's Court. 9. Surely too there must be an obligation on the party commissioning an expert report/assessment to consider the nature and complexity of the assessment required. The party should only instruct experts or assessors who have the appropriate qualifications and experience relevant to the issues to be addressed. 10. The quality and reliability of kinship/placement assessments would be greatly enhanced by: 1. Consideration being given to which assessor should be instructed taking into account the nature and complexity of the assessment to be undertaken and the qualifications and experience of the assessor. 2. A detailed letter of instruction as to the issues to be assessed, including a list of documents that are relevant to those issues. 3. Advice to the assessor that their paramount duty is to undertake the assessment impartially, not as an advocate for any position, on matters relevant to the area of expertise of the assessor 4. The report should include: * The name and address of the assessor * The qualifications of the assessor to prepare the report * Identification of the person/agency who commissioned the assessor to prepare a report * The issues the assessor was asked to assess and a list of the documents that the assessor considered (the letter of instruction and list of documents may be annexed) * The date of the assessment and the date of the report * The assumptions and material facts on which each opinion expressed in the report is based * The reasons for, and any literature or other materials utilised in support of, each opinion * (if applicable) that a particular question, issue or matter falls outside the assessor's field of expertise * any meetings, tests or other investigations or assessments on which the assessor has relied, identifying the person who carried them out and that person's qualifications * the extent to which any opinion which the assessor has expressed involves the acceptance of another person's opinion, the identification of that other person and opinion expressed by that other person * a declaration that the assessor has made all the inquiries which the assessor believes are desirable and appropriate, (save for any matters identified explicitly in the report) and that no matters of significance which the assessor regards as relevant have, to the knowledge of the assessor been withheld * any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate * whether, for any reason, any opinion expressed in the report is not a concluded opinion [1] 1. Once the assessor's report is received, DCJ must then critically review the content, reliability, and merits of the assessment and not simply accept the recommendations. 2. Even if DCJ is satisfied that the placement/kinship assessment is reliable, that is not the end of DCJ's task. DCJ must then consider the child's current circumstances and future needs and placement options in the context of the principles that must be applied by law, including importantly the Aboriginal and Torres Strait Islander child placement principles contained in section 13 of the Act. DCJ must balance all the advantages and disadvantages of each option and only then decide which placement will be in the child's best interest. 3. The difficulty of the task the Secretary must perform is acknowledged yet that difficulty is outweighed by the overwhelming importance of making the best decision for the child. Final Orders 1. On 24 January 2023, after a further Amended Care Plan and Cultural Plan were filed, the Court made final orders of parental responsibility of Lucinda to the Minister to 18 with a series of reports to the Court pursuant to section 82 of the Act. ********** Endnote 1. This list draws significantly from the Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 Amendments 27 February 2023 - Additional anonymisation 27 February 2023 - Additional anonymisation 19 June 2023 - Typographical error corrected at [52] 22 November 2023 - Typographical error corrected at [2], [11], [23], [34], [47], [52], [54], [64]. Change to list formatting at [41]. 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: 22 November 2023