Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Harry [2023] NSWChC 5 Hearing dates: 9, 10, 13, 16 and 17 March 2023 Date of orders: 17 March 2023 Decision date: 17 March 2023 Jurisdiction: Care and protection Before: Judge Ellen Skinner, President of the Children's Court Decision: Interim contact order to facilitate overnight supervised contact between parents and child. Catchwords: CHILDREN – Care and Protection – unexplained injuries – assessment of risk – interim contact order Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1 Category: Principal judgment Parties: Secretary (Department of Communities and Justice) Harry (Young person) The Mother The Father Representation: Counsel: Mr Illkovski (Secretary) Solicitors: Ms Willoughby (Independent Legal Representative) Mr Nott (Mother and Father) File Number(s): 2022/265690 Publication restriction: Pseudonyms have been used for the children, family members, carers and medical professionals. JUDGMENT 1. The court must decide whether to make an interim care order enabling overnight contact between Harry and his Mother and Father. Summary 1. Harry was born on 8 March 2022. During the night of 21 August 2022, the Father was settling Harry when Harry stiffened then went floppy. The Mother called 000 and an ambulance attended and conveyed Harry to hospital where examinations revealed Harry had sustained bilateral multi-layer retinal haemorrhages and a subdural haematoma. These injuries are consistent with injuries sustained by infants who have been shaken. 2. Harry was removed on 1 September 2022 and placed with his paternal grandmother and paternal aunt in a three-bedroom home. A summary of proposed plan filed on 21 September 2022 indicated that the Department of Communities and Justice were of the view that there was a realistic possibility of restoration to the Mother and Father. The parents disputed that Harry was a child in need of care and protection and the proceedings were listed for an establishment hearing commencing on 9 March 2023. The proceedings 1. Dr Joseph Lee, Paediatric Ophthalmologist at the Sydney Children's Hospital, gave evidence on behalf of the Secretary. Dr Lee stated that the injuries to Harry's eyes were most likely caused by an abusive head trauma which could either be caused by shaking, blunt trauma or a combination of shaking and blunt trauma. There would be additional external injuries if Harry's injuries had been caused by blunt trauma, like crushing from a serious car accident or a fall of more than 10 metres. 2. Dr Lee has worked in a hospital setting for 16 years and had only treated 3 or 4 children who presented with a similar condition. He had reviewed literature regarding 'shaken baby syndrome' which is now referred to as 'abusive head trauma' and had formed the view that Harry's presentation was highly suspicious. Dr Lee was not aware of a diagnosable medical condition that would present with the same injuries and believed Harry had been shaken. 3. Dr Erik Muller, neuropathologist, was commissioned to prepare a report on behalf of the parents. Dr Muller attended court by AVL to hear the evidence of Dr Lee and then shared his expert opinion about the likely cause of Harry's injuries. 4. Dr Muller has given evidence in numerous criminal and civil proceedings across the world involving allegations of abusive head trauma. He believes the research into abusive head trauma lacks integrity and any theory that shaking would lead to bi-lateral multilayered retinal haemorrhages is flawed. He opined that Harry had a virus which caused a fever and a seizure leading to bleeding in his eyes and a split in the retina. Dr Muller denied that shaking a child would lead to Harry's injuries. 5. The parents were reminded that the Court would determine the cause of Harry's injuries on the balance of probabilities. When the parties returned to Court on 13 March the parents conceded, without admissions, that Harry was in need of care and protection. The court was asked to note that both parents categorically denied causing harm to Harry. The concession was made as the parents hoped to proceed towards having Harry restored to their care and were concerned the restoration would be delayed by the hearing and judgment. 6. Following establishment, the Department is to provide a care plan. The parties discussed interim contact arrangements during the adjournment period and were unable to agree on whether it would be in Harry's best interests for contact to progress to supervised overnight contact. Interim contact application 1. The Department proposed an increase in contact to 35 supervised hours for the first week then 37.5 supervised hours each week. The parents sought an extended period of contact on the first weekend, an overnight stay on the second weekend, two overnight stays on the third weekend and three overnight stays on the fourth weekend and thereafter until the proceedings resolve. 2. The parties could not agree and asked the Court to determine whether the parents could have overnight contact. Although it was not expressed, the Court is only able to change interim contact arrangements by making an interim order or by convincing the Department that the Minister's parental responsibility should be exercised in accordance with the parents wishes. 3. The Children and Young Persons (Care and Protection) Act 1998 (NSW) informs decision making by the Department and by the Court, but each have distinct roles. The Department is responsible for responding to Risk of Significant Harm reports and has discretion when determining which, if any, action to take. The emergency power to remove a child pursuant to s 43 or s 44 is exercised in most of the filed applications for a care order pursuant to s 61. The Secretary must be satisfied on reasonable grounds that either the child or young person is at immediate risk of serious harm or serious harm or that the child or young person is in need of care and protection pursuant to ss 43 and 44. Once the care application is made the Court must determine whether a child is in need of care and protection pursuant to s 71 or was in need of care and protection when the circumstances that gave rise to the application occurred. 4. Following removal, s 45(1A) requires a care application to be made within three working days after the day on which the child was removed or assumed into care. In most cases the Secretary will seek an interim order allocating parental responsibility to the Minister and in most cases the Court will grant the order as sought by the Secretary. 5. Harry has been subject to an interim order that placed him under the parental responsibility of the Minister since 8 September 2022. The Secretary (through his delegates) has authorised Harry's paternal grandmother and aunt to be his carers and has made directions regarding contact since Harry was assumed into care. The Departmental caseworker and casework manager have been the primary decision makers regarding Harry's carers, residence and contact. 6. The parties made submissions. The Department and Independent Legal Representative agreed that there remained a negligible risk of physical harm to Harry if the parents were in Harry's home while under the supervision of Harry's carers. Therefore, the concern was that Harry would suffer psychological harm, either because overnight contact progressed too quickly or because the stress of the proceedings on the parents may impact on their ability to safely care for Harry. 7. Following submissions, I indicated that the presentation of injuries that led to Harry being removed indicated the future risk of harm to Harry through contact with his parents was a risk of physical harm and that I was satisfied that this risk of physical harm could be mitigated by the presence of Harry's grandmother or aunt. I noted there was a risk that increasing contact prior to final orders might operate adversely if contact were then to be reduced in final orders but that any psychological harm to Harry due to changed contact arrangements may be less significant because of his age. I was not satisfied that overnight contact would cause additional stress to his parents who may be hypervigilant and anxious in their care of Harry due to these proceedings. In my view the least intrusive intervention into Harry's life would be to enable his parents to spend overnight time in his home as their presence in the home reduces the pressure on them and their family. 8. The parties then discussed how this decision could be effected. The Department would not allow overnight contact such that an interim contact order was required. The Department indicated the process that had been undertaken to resolve the contact dispute was unacceptable. The Department insisted the parents file a written application for interim contact, supported by evidence, and stated they would file evidence in reply. Although the Department sought a longer period, I listed the matter on Thursday 16 March as court time was available due to the hearing dates that had been allocated to determine the issue of establishment. 9. Section 93 provides that proceedings before the Children's Court are not to be conducted in an adversarial manner and are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit. I remain confused about the purpose of the Court being asked to resolve the contact dispute on Monday afternoon given the Department refused to accept the process when the Court endorsed the parents' application. 10. After considering the Department's application for a filed contact application and the potential to receive additional material about the risk of overnight contact, the matter was adjourned to Thursday 16 March. 11. On 16 March the Department maintained their resistance to the parent's application and stated that the parents had not filed additional evidence and were not available for cross-examination such that the affidavits they had prepared for the establishment hearing could not be considered. 12. The Court considered the application for interim contact, the filed undertakings by the parents and carers, the material contained in the Court book, and the evidence given during the cross-examination of Dr Lee and Dr Muller. At 3pm Jenny Lewis, psychologist, gave evidence about the potential for harm to be caused to Harry through overnight contact. 13. The parents were previously assessed by Ms Lewis, who had provided a report on 31 January 2023. The report was prepared prior to establishment but in her assessment, Ms Lewis considered the likelihood that one or other parent had caused Harry's injuries. Ms Lewis concluded that restoration was feasible, depending on the engagement of the parents with DCJ and other supports, and with the provision of additional supports. 14. Ms Lewis administered tests to each of the parents and concluded (at paragraph 76 of the report) 'neither parent presents with any obvious barriers to impact upon their parenting capacity. There is no evidence of a history of dysregulated behaviour or mental health disturbance, neither report substance use concerns, and no concerns have been raised regarding family violence. Both parents present as being reasonably intelligent and educated, with sufficient finances and basic needs to care for a child. They are both able to describe methods of coping with frustration, and seek support from each other and family to assist with stress. Harry is the first child of both parents, and they appear to have adequately prepared for his birth by engaging with antenatal supports and reading. Post birth, they sought appropriate support through a Paediatrician, and are able to describe methods they used to soothe and support Harry. They can appropriately describe various needs of children and reflect upon their parenting strengths and challenges.' 1. At paragraph 86 of the report Ms Lewis states 'it is my opinion that the parents present as low risk of future harmful parenting practices.' 1. In cross-examination Ms Lewis indicated that it would be preferable for the parents and their carers to have a conversation about Harry's care environment before contact increased. She identified that future assessment about risk would be beneficial. Ms Lewis stated that contact should increase if there was a realistic possibility of restoration as Harry is in a key developmental stage for forming attachments. Ms Lewis did not believe overnight contact presented a greater risk of harm to Harry and noted that the awake time was more important for bonding between Harry and his parents. She was aware of studies showing the benefits to attachments from a carer putting a child to bed and being present when a child woke. 2. Ms Lewis determined that overnight contact, as provided, would be likely to benefit Harry more than it would harm him and it could occur on the following weekend. Any harm would be observable in changes to Harry's behaviour in response to the different care environment, but those changes could only be assessed once the environment changed. Ms Lewis was asked about the likely impact on Harry if restoration did not proceed and commented that the ongoing and consistent involvement of Harry's grandmother and aunt would be protective factors against Harry being harmed through interim overnight contact with his parents. 3. Ms Lewis has two further interviews lined up with the parents and stated it would be useful to review the parents' situation after overnight contact as the impact of changed contact on Harry, his parents and carers would inform future recommendations. 4. The Department was asked whether Ms Lewis' clinical assessment changed their view about whether overnight contact could be achieved within the existing interim order allocating parental responsibility to the Minister. They advised it would not and insisted that the Court defer making an interim order until they undertook further assessments. The next available Court date falls after the first proposed overnight contact. The Department refused to support one overnight contact during that period such that the Court is making an interim contact order today which will remain until further order, subject to circumstances changing. Determination 1. The court is guided by the paramountcy principle, the general principles for the administration of the Act, including s 9(c) 'the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child from harm and promote the child's or young person's development' and the permanent placement principles. 2. Under s 70 the Children's Court may make any such other care orders as it considers appropriate for the safety, welfare and well-being of the child or young person in proceedings before it, pending the conclusion of the proceedings. 3. The fact that Harry previously sustained an injury leads to a concern that he may sustain a future injury. As the cause of his injury has not been acknowledged it is difficult to assess whether the causes of injuries have been addressed or can be addressed. Whether or not Harry will be safe involves an assessment of the likelihood of physical harm and the likely severity of the physical harm. 4. Dr Lee commented that babies over the age of one are less likely to present with abusive head trauma due to shaking. No party alleged that Harry was deliberately harmed and there is no evidence as to whether or not Harry has sustained a permanent injury that impacts his behaviour or requires additional or specialised care. 5. Harry had his first birthday last week. Section 83(5)(a) provides that infants under the age of two are to have their matters finalised within 6 months in recognition of the impact of attachments between children and their carers during this developmental stage. Harry's primary attachments are currently his grandmother and aunt, although he has enjoyed positive, regular contact for up to six hours each week with his parents. If there is a possibility that Harry may safely be restored to his parents, there is benefit in increasing his contact with his parents to transition them to becoming his primary attachment figures. That benefit must outweigh any potential harm. 6. The Court must look at the circumstances of a child. A child who has been removed from the home is displaced and the lives of the carers are disrupted. Harry's grandmother and aunt have temporarily relocated from New Zealand to support Harry within the family, but their lives remain in New Zealand. 7. An infant requires constant attention from a primary care giver. The evidence indicates Harry was an unsettled baby who received medical attention for reflux. A baby who sleeps poorly or cries often can be stressful for care givers who are likely to experience disruption to their own sleep patterns. This environment is more likely to lead to harm caused by shaking. 8. There is no evidence about Harry's current sleep patterns or overnight needs but the proposal to increase the available carers from two to four for up to three nights each week will distribute care giving responsibilities and reduce the impact on Harry's grandmother and aunt. The undertakings from parents and carers that the carers will be present during all contact between the parents and Harry mitigates the risk of physical harm. Despite the lack of specific evidence, the signed undertakings from Harry's grandmother and aunt indicate they support the parents' proposal. 9. In considering the non-exhaustive criteria outlined in Department of Communities and Justice (DCJ) and Evie and Grace [2023] NSWChC 1: 1. The nature and seriousness of the injury The injuries were likely caused by shaking Harry over a brief period where a carer lost control. The incident was not planned and there is nothing that indicates Harry's carer intended to cause harm. There is no evidence indicating a permanent impairment or the lack of a permanent impairment. 1. The circumstances in which injury was observed and response of primary carer The parents contacted the ambulance shortly after observing a change in Harry's behaviour. They had actively sought medical review and treatment with previous health concerns. The failure to provide an explanation for the injury is not consistent with medical evidence, but the parents were otherwise consistent in their descriptions of Harry's presentation leading up to their attendance at the hospital. Harry injuries were probably caused by shaking but there remains a possibility the injuries were caused by a medical episode. The parents acted protectively by seeking urgent medical assistance. 1. The cause of the injury – who caused the injury (or who had an opportunity to cause the injury) and how did the injury occur? The injury was likely inflicted by a carer, and the primary carers were the mother and father. Dr Lee gave evidence that the type of injuries sustained by Harry can occur over a few seconds. 1. The factors underlying the conduct that caused the injury As the cause has not been identified, the factors are unknown but general factors include the carer losing control when an infant is awake and crying. 1. The resulting impairment to the child and whether the child requires specialist medical or home care There is no evidence of impairment or an indication that specialist care is required. 1. The ability of the carer to address the factors that caused the injury, the access to services to address those factors and the demonstrated commitment of the carer towards addressing those factors The parents have completed the Positive Parenting Program and may have now completed the Circle of Security Program. They have expressed a willingness to participate in programs as recommended by the Secretary. 1. The ability of the carer to meet the needs of the child The parents have been assessed as having the capacity to meet Harry's needs. They have strong family support and insight into parenting requirements. The support is a protective factor during the interim period. 1. The visibility of the child within the home and beyond the home and ability of observers to respond appropriately to escalating risk factors or evidence of further harm The parents are willing to enrol Harry in day care. Although this would increase visibility, I am satisfied of the protective capacity of Harry's grandmother and aunt and note the Minister retains parental responsibility. Accordingly, attendance at day care is not required and may be disruptive during this period. 1. The ability and willingness of the carer/s to comply with directions, engage with services and communicate with services when relevant factors change (housing instability, new partner, additional children etc) The parents have complied with all directions and have the capacity and commitment to continue to work with the Department. During the interim period the Department will retain parental responsibility and will be actively monitoring the family. 1. The age, capacity and vulnerability of the child and their ability to protect themselves from harm or seek assistance when risk factors increase Harry is one and although still vulnerable to harm through shaking, his vulnerability decreases with age. 1. The likely gravity of future harm A further episode of shaking may lead to grave injuries. Although harm could be grave, Ms Lewis assessed that the 'parents present as low risk of future harmful parenting practices'. 1. The psychological harm that is likely to be experienced by a child who remains with their parent / carer following injury, is restored to their parent / carer, or is displaced from their parent / carer and raised in out of home care Ms Lewis' evidence suggests the interim care order as sought by the parents is likely to meet Harry's psychological needs in the short-term and in the long-term considering the prospect of future restoration. 1. The Department has not presented as the model litigant in these proceedings. The dispute about overnight contact should not have been litigated on Monday if the Department were not prepared to accept the Court's decision. However, the delay was useful as the evidence of Ms Lewis was compelling and provides a clinical assessment that overnight contact is in Harry's best interest. 2. The Department expressed a concern that the parents' decision to contest establishment protracted the proceedings which delayed Harry's restoration. It appeared the Department were concerned that contact was being accelerated as if to compensate for delay that the Department attributed to the parents' position regarding establishment. In resisting the application for overnight contact, the Department submitted that the carers had not been contacted about the parents' proposed orders and an overnight stay could not be supported until consultation with the carers occurred. 3. The parents discussed their application for overnight contact with other parties on Monday. The court made a determination on Monday afternoon indicating support for overnight contact. There were two days between the parents requesting overnight contact and the interim contact hearing and there were four departmental staff in the court during the interim contact hearing and yet nobody had spoken to the authorised carers. 4. Departmental caseworkers and casework managers have a difficult role managing children, parents, carers and services within resource limits. The work they do is critical and the community is reliant on them allocating resources appropriately when responding to risks of harm to children. The Department and Court have different roles and may form different views about what action is in the best interests of the safety, welfare and well-being of a child but neither should lose sight of their obligation to operate in the best interests of the child. 5. There may be situations where the undesirable or adverse behaviour of a parent or carer leads the Department or the Court to reduce contact or change a recommendation about restoration. The Department and Court should be vigilant about ensuring that any action which limits interactions between the parent and child is only taken when it is necessary to protect the child from harm. There is no scope in this jurisdiction to reward parents who comply with directions or punish parents who do not comply with directions unless their ability to comply impacts an assessment about the future risk of harm to their child. 6. The best interests of the safety, welfare and well-being of a child are the paramount consideration and must be the paramount consideration. The Court is not to direct the Department in how to allocate the supply of services and supports but the Department, parents, carers and the Court should work together, where appropriate, to ensure that the care needs of a child are being met. Communication and compromise may be necessary to make decisions efficiently while supporting the relationships between the current primary care givers of a child and the future care givers of a child in keeping a child safe from harm. 7. The interim contact order is appropriate for the safety, welfare and well-being of Harry and will be made in the terms sought. ********** 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: 01 May 2023