Children's Court New South Wales Medium Neutral Citation: Department of Communities and Justice (DCJ) and Skyla [2023] NSWChC 12 Hearing dates: 28 August 2023 Date of orders: 27 September 2023 Decision date: 27 September 2023 Jurisdiction: Care and protection Before: Judge Ellen Skinner, President of the Children's Court of NSW Decision: Establishment Catchwords: CHILDREN – Care and Protection – Establishment – Availability of parent – No parent available Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Act 1975 (Cth) Cases Cited: Re Alistair [2006] NSWSC 411 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Category: Principal judgment Parties: The Secretary, Department of Communities and Justice Skyla (Young person) The Mother Representation: Counsel: Ms Mahoney (Secretary) Solicitors: Mr Mara (Skyla) Mr Kennard (the Mother) File Number(s): 2023/00157584 Publication restriction: Pseudonyms have been used to protect the identity the child and family members. JUDGMENT 1. The Court must determine whether a child is in need of care and protection when their parent makes alternate care arrangements due to the parent's inability to provide primary care. The Court must consider the authority of a parent to delegate care responsibility, the factors that influence the capacity of a parent to delegate care responsibility, and whether the delegation accords with the safety, welfare and well-being of a child. Summary 1. Skyla was assumed into care shortly after her birth on 12 May 2023. 2. Skyla's mother is 34 years old. She is an Aboriginal woman. Skyla's father has not been identified but is of African heritage. 3. Skyla's mother was in custody when Skyla was born, and she remains in custody pending sentence for offences involving violence and drug use. She is likely to receive a sentence of imprisonment. 4. Skyla is her mother's seventh child. Five of Skyla's siblings have been placed in out of home care due to risks of harm posed by their mother's drug use, use of physical violence, exposure to domestic violence, suicidal ideation, inadequate supervision and leaving children with unsafe adults. Skyla's mother has been diagnosed with schizophrenia and takes medication. 5. The Department of Family and Community Services ('The Department') received a pre-natal report in January 2023. The Department consulted staff from the Correctional Centre and met Skyla's mother to discuss plans for the child. 6. Skyla's mother acknowledged that she would not be able to care for her child. She nominated her friend, Jennifer (a pseudonym), as a future carer and stated that she planned to give the baby to Jennifer. She preferred to make this arrangement without the intervention of the Department. 7. In February, the Department contacted Jennifer who confirmed her willingness to care for the baby. Jennifer agreed to undertake a carer's assessment. The Department arranged for an external assessment. In April, the Department was advised that Jennifer was not recommended to provide respite or long-term care for the baby. 8. Skyla's assumption into care occurred while her mother was in surgery due to complications from the birth. Skyla was placed with authorised carers for her half-brother, Jeffrey, one of whom identifies as Aboriginal. 9. The Secretary filed an application initiating care proceedings on 17 May 2023, seeking a finding that Skyla is a child in need of care and protection on grounds 71(1)(a) and 71(1)(d). The Secretary seeks final orders allocating parental responsibility to the Minister until Skyla is 18 years old, pursuant to s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ('the Act'). 10. The mother opposes the Court finding that Skyla was a child in need of care. The law 1. The Children's Court must determine whether a child was, or is, in need of care and protection prior to making a care order (s 72). A 'finding' that a child is in need of care establishes the jurisdiction of the Court. An application for a care order may be dismissed if the Court is not satisfied that a child was or is in need of care and protection (s 72(2)). 2. In Re Alistair [2006] NSWSC 411 at 65, Kirby J considered 'the establishment' phase of care proceedings as distinct from 'the welfare phase', referring to Lord Nicholls of Birkenhead's judgment in Re O and Anor (Minors) (Care: Preliminary Hearing) (2003) 2 WLR 1075: '... The purpose of this threshold requirement is to protect families, both adults and children, from inappropriate interference in their lives by public authorities through the making of care and supervision orders.' 1. Section 71(1) provides that: The Children's Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care for any reason, including: (a) there is no parent available to care for the child or young person as a result of death or incapacity or for any other reason,(d)(Dd) (d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers 1. Subsection (2) provides: The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of— (a) a parent's or primary care-giver's disability, or (b) poverty. 1. The Secretary is the applicant, and the standard of proof is the balance of probabilities (s 94(4)). The rules of evidence do not apply unless the Court makes a determination under s 93(3). The Court must: '…draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material' (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 per Allsop P in JL v Secretary, Department of Family and Community Services [2015] NSWCA 88). 1. The objects of the Act (as relevant to these proceedings) include that children and young persons receive such care and protection as is necessary for their safety, welfare, and well-being, having regard to the capacity of their parents or other persons responsible for them. The Act recognises that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles (s 8). 2. The principles of the Act include that in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount (s 9). 3. Part 2 of the Act applies to Aboriginal and Torres Strait Islander people. Part 2 recognises that Aboriginal people have the right to participate in the care and protection of their children with as much self-determination as is possible (s 11). It outlines different principles for administering the Act in relation to Aboriginal children including prevention, partnership, placement, participation, and connection (ss 12A and 13). The focus of Part 2 is on the connection between the child and their family, community, and culture. Issues to be determined 1. The Court must determine whether a parent is unavailable to care for a child if they are able to make decisions about the care of a child. The Court must also determine whether an assessment as to the likelihood of a parent or caregiver meeting the basic physical, psychological or educational needs of a child is determined by the capacity of a parent to make a decision delegating parental responsibility or determined by the merits of a parent's identification of a suitable care-giver. 2. Skyla's mother asks the Court to consider the definition of 'parent' in the context of s 71(1)(a) and the meaning of 'available to care'. 3. Section 3 of the Act provides: parent of a child or young person means a person having parental responsibility for the child or young person. parental responsibility, in relation to a child or young person, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. care responsibility means the authority to exercise the functions specified in section 157. 1. Section 157 is in Chapter 8 of the Act, titled 'Out-of-home care'. The chapter relates to arrangements for children who have been placed in out of home care. The extended definition of care responsibility under this chapter cannot inform the interpretation of 'parental responsibility'. 2. Section 61C(1) of the Family Law Act 1975 (Cth) provides: Each of the parents of a child who is not 18 has parental responsibility for the child. 1. Parental responsibility cannot be transferred or assumed prior to the birth of a child. Skyla's mother had expressed an intention to transfer parental responsibility to Jennifer, but this could not be effected until Skyla's birth. A person can care for a child without an allocation of parental responsibility, informally, through family or kin arrangements, or formally, as occurs in statutory out of home care arrangements. 2. Jennifer was at the hospital when Skyla was born. Skyla was in Jennifer's care while Skyla's mother was having surgery. When Skyla was transferred to the Neonatal Special Care Unit she was assumed into care. 3. The timing of Skyla's assumption into care prevented Skyla's mother from formalising arrangements for Jennifer to care for Skyla. Skyla's mother was unable to transfer physical care or commence the lengthy process of transferring legal responsibility. 4. Skyla's mother submits that s 71(1)(a) addresses risks to children posed by the inability of a parent to make provision for the care of a child, due to their unavailability. The Court is asked to consider whether unavailability attaches to the physical provision of care or the capacity to make decisions about the provision of care. Skyla's mother submits that if 'unavailability' attached to the physical provision of care then any child with a parent who is overseas, in hospital or in gaol would be a child in need of care. 5. The alternative interpretation of 'unavailable' relates to the capacity of a parent to make provision for the care of their child. While in custody, Skyla's mother was abstinent from drugs and had stable mental health. Skyla's mother submits that she was not unavailable pursuant to s 71(1)(a) as she had the capacity to delegate care responsibility to Jennifer. The assumption of Skyla thwarted her capacity to exercise and delegate her parental responsibility. 6. 'Care' is defined in the Oxford dictionary as 'the process of caring for somebody/something and providing what they need for their health or protection' and 'care' is defined in the Macquarie dictionary as 'protection; charge'. 'Care responsibility' as defined in s 157 of the Act relates solely to the authority of an authorised carer but s 157 specifies the types of responsibilities that may be undertaken by a carer, including authorising medical and dental treatment, managing behaviour, permitting school activities, and making decisions around the day-to-day care and control of a child. 7. The legislation specifies that the Court assess the need of a child at the time of the circumstances that gave rise to the care application. At the time of assumption Skyla's mother was her parent. Her parent was not available to care for Skyla in the community and did not wish to care for her in custody. At law, Skyla's father is also her parent but as his identity is currently unknown, he is not available to care for Skyla. 8. There is currently no parent available to care for Skyla. 9. Skyla's mother submits that the Court should assess whether Jennifer, as delegated primary caregiver, was likely to meet the physical, psychological and educational needs of Skyla pursuant to s 71(1)(d) and not whether Skyla's mother was likely to meet those needs. Skyla's mother submits that the Court need not consider whether Jennifer has been authorised as a carer, simply whether Skyla would be a child in need of care and protection if placed with Jennifer. 10. Skyla's mother refers to the independent assessment of Jennifer to support her contention that Jennifer would likely meet the physical, psychological and educational needs of Skyla. The assessor noted that Jennifer presented as 'open, earnest and humorous' through the assessment process. Jennifer was thoughtful and responsive to risk issues regarding Skyla's contact with her mother and future engagement with her father. Jennifer's home environment 'is appropriate for the baby'. Jennifer had a history of accessing medical and therapeutic support for her children and herself. Jennifer was physically able to care for a child and could make arrangements to be available to care for a child. The assessor commented: 'Jennifer does not currently have any known significant health considerations that would impact the placement of the baby' and 'Jennifer currently works full-time and spoke about dropping some of her current work hours during the night.' 1. The assessor's decision not to authorise Jennifer as a carer related to concerns about whether the relationship between Jennifer and Skyla's mother would impact Jennifer's ability to protect Skyla; the breakdown in relationships between Jennifer and her adult children; and Jennifer being neither kin nor Aboriginal. Those factors relate to placement preferences but do not impact a determination about whether Skyla would have been a child in need of care and protection if she were in Jennifer's care. Skyla's mother noted that any concerns about the mother posing a risk to Skyla would be negated during the period in which Skyla's mother is incarcerated. 2. The risk to a child can be assessed according to the capacity of a parent to make decisions about the care of a child, focusing on their capacity and not the quality of their decision, or it can be assessed on the quality of their decision. 3. The Court has received evidence about the process for transferring parental responsibility at law. Skyla's mother prepared a draft agreement in the nature of a parenting plan to clarify her proposal regarding Skyla's care and future contact. The detail of the parenting plan is relevant if the risk to the child is assessed on the quality of the decision. 4. Due to Skyla's age and medical needs the relevant adult was a parent and not a primary caregiver. Primary care was undertaken by the Neonatal Special Care unit with the mother holding parental authority until the point of assumption. At the time of assumption Jennifer did not have parental authority nor care responsibility for Skyla. 5. The Court must determine whether Skyla's mother had the capacity to meet current and future basic physical, psychological or educational needs of Skyla when delegating care responsibility. The question is whether all parents have the authority to delegate care responsibility for their children, or whether the presence of parental risk factors indicate that some parents may lack the capacity to make decisions that support the safety, welfare, and well-being of their children. 6. Skyla's mother was unavailable to provide care for Skyla due to her incarceration, but unavailability was not the sole risk factor. Five of Skyla's half-siblings were removed from their mother due to risks including drug use, suicidality, domestic violence, inadequate supervision and the risk of physical injury. One child was removed having suffered burns caused by his stepfather. The evidence indicates that Skyla's mother failed to adequately protect her children from harm due to impaired decision-making, negative associations, and poverty. 7. Skyla's mother has experienced significant hardship and has a difficult relationship with the Department, her children, and their fathers. Her experiences inform her desire to protect Skyla from Departmental intervention, but her perspective may not be objective or child-focused. 8. The presence of risk factors triggered a risk report. An assessment of that risk led to case management which culminated in Skyla's assumption into care. Skyla's mother did not have the capacity to prioritise the needs of her child in determining an alternate care arrangement. The focus is not on whether Skyla's mother made a good decision, rather whether the presence of risk factors indicated that she may not be capable of making a decision that prioritised the safety, welfare, and well-being of her child. 9. Where the actions, omissions or decisions of a parent may present a risk of harm to a child, there must be oversight to ensure the safety, welfare, and well-being of that child. This is interference is necessary to protect children from harm. Children have complex needs beyond their daily care and their psychological needs can only be met through proper consideration of issues of identity, family, culture, and contact. 10. The Court must apply the law to Skyla's circumstances in assessing whether Skyla was a child in need of care. The grounds for care orders in s 71(1) may apply to children who are never reported to the Secretary and/or never receive intervention or removal. The Court does not have to decide whether those children are in need of care, it can only decide whether a subject child is in need of care. 11. The authority to make a care order is discretionary. Sections 71(1)(a) and 71(1)(d) specify reasons a child may be in need of care and protection, but there may be circumstances where the Court declines to make a care order. 12. Skyla's mother was not available to care for Skyla pursuant to s 71(1)(a). Nor was Skyla's mother capable of making a proper assessment about an alternate carer's capacity to meet the basic physical, psychological or educational needs of Skyla at the present time or in the future (s 71(1)(d)). 13. The Secretary has satisfied the Court that Skyla is a child in need of care and protection pursuant to grounds 71(1)(a) and 71(1)(d). 14. The assessment indicates that Jennifer would be capable of meeting the care needs of Skyla, despite the lack of formal care authorisation. The merit of Jennifer's application may be considered in a future joinder or a determination about permanent placement. The Aboriginal and Torres Strait Islander Principles will be relevant in assessing Skyla's connection with family, community and culture. ********** Amendments 13 October 2023 - Minor amendment to case title 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: 13 October 2023