Set aside by Appeal : Appeal allowed in part on 6/12/2000 CITATION: B v Director General, Department of Community Services [2000] NSWADT 1 DIVISION: Community Services Division APPLICANT B PARTIES: RESPONDENT Director General, Department of Community Services FILE NUMBER: 994014 HEARING DATES: 10/11/99 SUBMISSIONS CLOSED: 11/10/1999 DATE OF DECISION: 01/07/2000 BEFORE: Hennessy N (Deputy President); Houlahan L - Member; Monoghan-Nagle L - Member APPLICATION: Custody - decision to terminate the custody of a ward MATTER FOR DECISION: Principal Matter LEGISLATION CITED : Children (Care and Protection) Act 1987 CASES CITED: APPLICANT REPRESENTATION: In Person RESPONDENT B Jarvis (Assistant Manager, Shoalhaven Community Services Centre) ORDERS: The Minister's decision to terminate the custody of a ward is affirmed. Background 1 This application was made by B, maternal grandmother of A, against the decision of the Minister for Community Services to remove A from her care. 2 A is a 9 year old boy with a diagnosis of attention deficit hyperactivity disorder and severe behavioural disabilities. His father, who is now deceased, was an Aboriginal person. His mother, has a record of violent behaviour. According to Departmental records, the first notification of A as a "child at risk" was made in 1992, the second, third and fourth in 1996 and a further two notifications in 1997. Each of the notifications concerned allegations about A's natural mother, her inability to care for her children and the risk of harm or abuse while in her care. 3 A was made a ward of the State with the consent of all parties, in October 1997. At the time of the wardship order A and his two sisters were living with Mrs B. After being declared a Ward of the State, A remained with his grandmother who was then living on the Central Coast. Mrs B subsequently relinquished the care of the two girls allegedly saying that she could not care for the three children. 4 At the time of this application A was residing with Departmental foster carers pending a long term placement. Jurisdiction and legislation 5 Under s 91(1)(e) of the Children (Care & Protection) Act 1987 the Minister may terminate the custody of a ward who has been placed in the custody of a person approved by the Minister. Pursuant to section 112(h) a decision of the Minister to terminate the custody of a ward under s 91(1)(e) is reviewable by the Tribunal. 6 Section 89 of the Children (Care and Protection) Act 1987 states that (1) In the administration of this Part, the welfare and interests of wards and protected persons shall be given paramount consideration. (2) In determining any matter relevant to the welfare or interests of a ward or protected person, regard shall be had to the wishes of the ward or protected person. 7 Section 87 relates to the care of Aboriginal children. It states that: An Aboriginal child shall not be placed in the custody or care of another person under this Part unless: (a) the child is placed in the care of a member of the child's extended family, as recognised by the Aboriginal community to which the child belongs, (b) if it is not practicable for the child to be placed in accordance with paragraph (a) or it would be detrimental to the welfare of the child to be so placed---the child is placed in the care of a member of the Aboriginal community to which the child belongs, (c) if it is not practicable for the child to be placed in accordance with paragraph (a) or (b) or it would be detrimental to the welfare of the child to be so placed---the child is placed in the care of a member of some other Aboriginal family residing in the vicinity of the child's usual place of residence, or (d) if it is not practicable for the child to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the welfare of the child to be so placed---the child is placed in the care of a suitable person approved by the Director-General after consultation with: (i) members of the child's extended family, as recognised by the Aboriginal community to which the child belongs, and (ii) such Aboriginal welfare organisations as are appropriate in relation to the child. 8 Pursuant to s 63 of the ADT Act, the Tribunal can affirm the decision, vary the decision or set aside the decision and make a decision in substitution for the one which it has set aside. Our task is to decide whether the Department's decision to remove A from the care of Mrs B was the "correct and preferable" decision. In making this decision we must give paramount consideration to A's welfare and interests, apply the Aboriginal child Placement principle set out above and have regard to A's wishes. Evidence A 9 The Tribunal spoke privately to A in the presence of his Guardian Ad Litem, Gary Broadbridge, prior to the commencement of the proceedings. We explained to him that our job was to decide whether it was best for him to continue to live with foster carers, or be returned to the care of his grandmother. 10 When asked where he would like to live, A replied, "With Nan and my brother." A has a 16 year old half brother as well as two younger sisters. He explained further that, "Nan is always there to help- when mum goes to hurt me, she (nan) helps me." When asked about his current placement, A said, "I don't like going to other places. I'm only used to home . . . If I don't get to live with my nan I'll run away." A was asked if his nan or anyone else hit him. He stated that, " John has hit me heaps of time with a belt. He even belts the dog. . . John is always cranky." John is a long term boarder who resided with Mrs B. 11 In response to other questions from the Tribunal, A stated that he and his grandmother would be going to England on an aeroplane when she wins the Lotto. He also stated that he got into trouble with Mr Lowe, (the Deputy Principal) a lot at school. Ms Beth Jarvis (Assistant Manager Community Services, Nowra) 12 Ms Jarvis confirmed that A and his sisters, were made wards of the State with the consent of all parties. According to her understanding of what had transpired at that time, A was placed with his grandmother because of a lack of other placement options. She stated that it was her understanding that the initial plan for A was for him to go to a boarding school during the week and return home on weekends. This was because the Department had long standing concerns about Mrs B's ability to care for A and to keep him safe from his mother who has a history of substance abuse, violence and neglect of her children. This plan was not implemented and Mrs B and A moved from the Central Coast to the South Coast specifically to enable A to attend Nowra East Public School which has a special support class. 13 Ms Jarvis drew the Tribunal's attention to her reports outlining A 's notification history while in the care of both his mother and his grandmother. She emphasised that it was the Department's view that "A was not safe in B's care but no alternative placements were available." 14 Ms Jarvis stated that the Department had undertaken a risk assessment of A on 3 June 1999, in which the following risk factors were identified: · Mrs B had not been able to protect A from his mother and potential harm and abuse; · A had been repeatedly exposed to violence while in his grandmother's care; · A had been destabilised by living apart from his mother but could not live safely with her; · A's mother had in the past made plans to kidnap A, and his two sister; · A had allegedly been sexually assaulted by his mother (see notification 18/3/97) which was never investigated by Wyong Community Services Centre; · John (B's boarder) has assaulted A's mother in the past and B has not been able to protect her; and · B has a problem with alcohol and her daughter has a substance abuse addiction. 15 In further outlining the Department's case for A remaining in the Department's care, Ms Jarvis drew the Tribunal's attention to the fact that since he has been with Departmental carers, he has progressed from not attending school at all due to behavioural difficulties, low attention span and at times uncontrollable behaviour, to his current attendance of five hours per day and pleasing academic progress. She stated further that A's most recent carers had made considerable progress with A. 16 In summarising the Department's case, Ms Jarvis stated that "A is a boy with enormous potential . . . while he has severe behavioural problems with clear boundaries and limit setting he can excel." She drew the Tribunal's attention to her report and concluded that "A is at risk in B's care as she is torn between her daughter and her grandson. B does not have the skills to manage A and he would be at risk were he to be placed with her." Lyn Hodgkinson (Intensive Family Support Worker, Department of Community Services) 17 In terms of A's current and intended living arrangements, Ms Hodgkinson informed the Tribunal that his current placement is to continue until 17 December 1999 following which long term carers are available from the 22 December 1999. Ms Hodgkinson explained that the intended carers are a couple aged in their early thirties who have until this time only fostered babies. She stated that they are nonetheless highly motivated to provide the long term and intensive support needed by A. She expressed the view that it was vital that A have a strong but gentle male role model in the family and that the prospective carers are prepared to be actively involved in all aspects of A's care and education. 18 According to Ms Hodgkinson, the proposed female carer has resigned from her job as a nurse to be able to provide A with greater attention when he comes to live with them, and her husband is willing to take time out from his employment as needed to support A. They have both requested extra training from Audrey Girvan, the Independent Family Support Worker who previously supported Mrs B. 19 The Tribunal sought Ms Hodgkinson's views on proposed contact between A and his grandmother. Ms Hodgkinson confirmed that the Department recognised the strong bond between A and his grandmother but stated that the Department would generally implement quarterly access arrangements when a child goes into long term care. In A's case however, she felt that monthly contact would enable A time to settle into his placement. 20 Ms Hodgkinson also added her view that the bond between A and his sisters should be fostered, particularly as they are around his age and the relationship with them will be a long term one. She added that both sisters want to see both their brother and their grandmother and that the Department will be facilitating access. She also acknowledged that A wishes to remain in contact with his half brother who lives in Grafton. Robert Stewart (Advisor to Department on culturally appropriate placements) 21 Mr Stewart did not prepare a formal report for the Tribunal but stated that it was his role to ensure that A's cultural needs are met through his placement and case plan components. While commenting to the Tribunal that a non-aboriginal placement was not ideal, he acknowledged that the Department had attempted to find an aboriginal placement for A without success. 22 Mr Stewart then said that he had met with the proposed carers and developed a Carers Agreement which commits them to certain obligations which will help A understand his aboriginality and his culture in an ongoing way. 23 Mr Stewart believed that A has been denied his culture by having limited contact with his siblings, paternal grandfather and half brother. He believes A identifies as an aboriginal child and that if his needs are not met through his placement he will search out his roots at a later stage. 24 A has stayed at Mr Stewart's home and on 29 October 1999 he escorted him to Casino and Grafton to visit his relatives. A was able to meet his grandfather (who he thinks is an uncle) and to engage with his peer group. On one occasion Mr Stewart observed A becoming overexcited and threatening his half brother with a rock. Mr Stewart also observed some rough play but put this down to A's excitement and the newness of the situation. 25 Mr Stewart informed the Tribunal that he had taken A to visit his father's grave and introduced him to family members. At the time he discussed the Carers Agreement with A's grandfather who agreed that it was the best option in the absence of aboriginal carers. He noted that A appeared to have difficulty forming relationships while on the visit although he enjoyed it a great deal. 26 Mr Stewart acknowledged that A has experienced many changes in placement over the last six months or so but was emphatic that if the proposed carers cannot meet his cultural needs then A should be removed from their care and further efforts made to find him a Koori family. Audrey Girvan (Independent Consultant to the Department) 27 Ms Girvan explained to the Tribunal that she had been an Independent Consultant with the Department since June 1999 having previously been employed by Marist Services and the Health Department over a ten year period. The Tribunal acknowledged her Supervised Access Visit Reports and asked her to further detail the input she has had into supporting B and A. 28 Ms Girvan explained that she has supervised the access between B and A. As part of this role she has developed various programs and charts with information for Mrs B about ways in which to respond to A's demands and behaviours. She stated that she had also acted as a role model through various interactions and directly intervened when B appeared to lack the skills to deal with some of A's difficult behaviours. 29 In terms of Mrs B's management of A, Ms Girvan stated that it was her observation that she lacked the skills to deal with A's behaviour and that she was often either manipulated by him or tried to bargain with him inappropriately. She felt that Mrs B did not appear to learn from her input and would often become upset by A's behaviour and give in despite being given concrete ways in which to respond. 30 In Ms Girvan's opinion, Mrs B appeared to be focused more on her own needs than A's, despite their strong commitment to each other. When asked by the Tribunal whether she felt that Mrs B could develop further insight and skills in managing A's behaviour, Ms Girvan expressed the view that she did not believe so and that she personally doesn't have the skill to improve Sylvia's parenting style. 31 In terms of the skills and abilities of A's foster carers, Ms Girvan said that when A was in foster care he readily accepted restrictions on his behaviour and when things became difficult he would go to his room. Ms Girvan said that A was more respectful of his carers than of his grandmother and that she noted a great change in his compliance levels and willingness to accept consequences for his actions when away from his grandmother. Mr Robert Lowe, Deputy Principal Nowra South Public School 32 Mr Lowe outlined his role as deputy principal at Nowra South Public School, concluding that he was primarily responsible for behaviour and discipline among the students. He cited the report of Ms Kim Harrington, the Year 6 teacher, who has a close working knowledge of A's presentation at school. Quoting Ms Harrington's report he said that "Initially A was in an integrated program with only partial attendance. He didn't participate or interact at all, used foul language and was difficult to get to know . . . A had a non existent knowledge of numbers and letters and his behaviour was often intimidating." 33 Mr Lowe cited an instance early in 1999 when A was out of the classroom roaming around the school, being disruptive and threatening. He was suspended for his behaviour and subjected to a home time out for his behaviour. Mr Lowe said that when he tried to discuss this situation with Mrs B she hung up on him. Mr Lowe added further that when A's behaviour was particularly difficult Mrs B had committed to attending school to assist with his management but didn't show up. 34 Mr Lowe was asked to comment on what has occurred over recent months since the Department of Community Services placed A in foster care. He said that from about June or July 1999, A has made considerable progress. He can now identify numbers and write his name. Mr Lowe described A's behaviour as "less in your face than before" and said that his school hours were extended as a result. 35 Since May 1999, A has not been suspended from school and has done a lot more work. He is seen to be responsive and making good progress. Mr Lowe said that in his opinion, A now takes pride in his achievements and actively seeks positive feedback. 36 Mr Lowe attributed A's dramatic behavioural change to improved communication between the carers and the school as well as a consistent approach to A's management. He said that the school has employed a male teacher's aide who serves as a role model and provides stimulating play activities and substantial one to one attention. 37 In term four 1999 A commenced an educational plan which culminated in his attending school for a full day. He also attended the ten pin bowling program on a number of occasions. In 2000 it is intended that he go back to the Specialist Disability Unit to enhance his social skills and participate in anger management programs. Mr Lowe anticipates that with consistency and stability, A will continue to make progress and to engage in meaningful play with his peers. Mr John Maxwell Cheek, Clinical Psychologist 38 Mr Cheek explained that he is a Senior Clinical Psychologist with the Department of Community Services. His involvement with A B has been minimal, consisting largely of consultation with other workers. At one stage, A was referred to him for grief and loss issues. At that time A did not engage on the subject and there was no further involvement. 39 As Mr Cheek had no current first hand knowledge of A and had not been part of the Departmental decision to remove him from his grandmother's care, the Tribunal did not find his evidence of any probative value. B 40 Mrs B told the Tribunal that she felt it was unfair that she was being punished by the Department of Community Services for the behaviour and problems experienced by her daughter. She acknowledged that she used to spoil A when he lived with her but felt that she had the ability to learn more about parenting him. B said that she missed A a great deal and that if he came back to live with her they would both be a lot better off. 41 Apart from having each other for company, Mrs B also explained that she receives less financial support from the Government now that A is not residing with her. John, the boarder, no longer resides with her so she does not receive any rent from him. Mrs B told the Tribunal that she was behind in her car repayments as a result. 42 Mrs B said she no longer knew the exact whereabouts of her daughter and that unlike previous occasions when she hadn't been able to say no to her, she felt she could now stand up to her. She reminded the Tribunal that she had taken out an apprehended violence order against her daughter. Mrs B did not contradict the assertion of a Departmental representative that the order had been breached on more than one occasion. 43 When asked about the boarder, John, Mrs B said that he had recently moved out and that she no longer sees him. When asked when she last had contact with him, Mrs B said she thought he might have been at a barbeque next door a few days ago and that she had asked him to come back to mow her lawns. 44 Mrs B denied that John had ever hit A and said that they had very little to do with each other. She stated further that A, "makes things up sometimes to get attention." She acknowledged however that John "is not good with children and gets cranky and shouts at A sometimes." 45 When asked to identify A's needs, Mrs B said that he needed to be with her and that he needed lots of love and care. She expressed her concern about A being moved from one placement to another and the effects that it would have on him. Mrs B said that she recognised his need for contact with aboriginal culture and that she would be prepared to do whatever was necessary in this regard with Robert Stewart's assistance. 46 Mrs B told the Tribunal that A had been ringing her in secret but was not able to be specific about times and dates when this had occurred. 47 When asked about her alleged alcohol problem, Mrs B denied that this was an issue stating that she consumed wine, beer or sherry possibly two nights a week and had never been affected by alcohol. 48 In questioning Mrs B about A's problems at school particularly the reported aggression and violence, Mrs B felt that she had done a good job of bringing up A and that there had never really been any problems when he was home with her. She stated further that she needed to learn to be able to say no to him and not to spoil him by giving him things all the time. 49 The Tribunal sighted a report from the Department of Community Services which stated that A had run away from home when aged 6 years and 3 months. Mrs B denied that this had occurred or that he had experienced any problems while in her care. 50 The Tribunal asked Mrs B about her understanding of Audrey Girvan's role and Ms Girvan's report to the Tribunal. Mrs B stated that she felt she could learn more and that Audrey had been prepared to do more for the foster carers than for her. She said that although she got on OK with Audrey she felt their relationship changed when restoration to her care was no longer part of the Department's case plan for A. 51 Mrs B asked the Tribunal to consider restoring A to her care for a three month trial period to see how things went. She said further that she did not have any supports but would be prepared to continue to have input from the Department and the school. Mrs B did not agree that a male role model was important for A stating instead that she was able to provide everything he needs. Mrs S (former Departmental carer) 52 Mrs S outlined the changes she and her husband had observed over the last four months of caring for A. Initially, upon coming into their care she said that he was demanding and constantly seeking attention. S described him as verbally aggressive with few social skills. 53 S then went on to describe the changes noted by the family. "He began to settle into the structure and routine of family life and within a short time he became compliant (even when angry) and was able to take time out in his room. He began to accept the normal limits imposed on his behaviour." 54 S commented further that a measure of A's success and potential was that he had recently been on an outing to Wonderland. He is also able to play chess for periods of up to three quarters of an hour and is responsive and willing to be part of a family situation. 55 S did not accept Mrs B's evidence that A had rung her in secret stating instead that while he talked of missing his sisters, he had ripped up a photo of his grandmother and broken the toys she had given him. S recalled A saying that his grandmother was unable to keep him safe. Mr Keith Bourke (Independent psychologist) 56 The tribunal asked Mr Bourke to prepare an independent report for these proceedings. He told the Tribunal that he has a clinical masters degree in psychology and has worked in general practice, with children and adults for the last ten years. The Tribunal asked Mr Bourke's to summarise his report regarding his findings and recommendations with respect to A. He told the Tribunal that: · A is experiencing insecurity at the changes going on in his life and is grieving the loss of his mother and grandmother; · A needs consistent limits for his behaviour; · A is not displaying any depressive symptoms but has the potential for self harm. He also has the potential for the development of a borderline personality disorder given his family history and life experiences to date; · appropriate paediatric and psychiatric care will assist in A's management in the future; · A has the potential to be quite disordered should he remain in Mrs B's care and this would not be the best placement for him as he has a variety of needs which she is unable to meet; and · peer group involvement and integration would be beneficial. 57 Mr Bourke concluded in his report that "it is a priority to protect A from exposure to violent incidents such as those recently perpetrated by his mother. Unfortunately my view remains concurrent with that of the Department in observing that B cannot currently provide adequate protection for A." 58 The Tribunal also sought Mr Bourke's professional opinion about Mrs B's ongoing role in A's life. He stated that it was of great importance to A that his grandmother continue to be a constant part of his life. Mr Bourke suggested that this role needed to be structured and purposeful so as to ensure that both A and his grandmother get the maximum benefit. 59 In terms of the frequency of access, should A remain in Departmental care, Mr Bourke stressed that the frequency was not so much the issue as the quality of the contact. He did however, indicate that some form of weekly involvement in a structured activity such as sport or school activities could be considered. 60 Mr Bourke further stated that while A's behaviour has improved there are major inconsistencies in what he says and what he does. He pointed out that the world is an unpredictable and insecure place for A given what he has been through and that a concerted effort is needed to ensure that the gains made are maintained and built upon. Mr Gary Broadbridge, Guardian ad litem 61 The Tribunal appointed Mr Broadbridge as guardian ad litem the represent A's wishes and interests at the hearing. He said that while A wants to live with his mother and grandmother A "sees big problems with mum and Gran. . . mum always wins and pushes gran." 62 Mr Broadbridge expressed the view that while A has made progress he still cannot be left unsupervised with other children. In Mr Broadbridge's view this is because violence has been a normal part of A's life. Mr Broadbridge said that in his opinion A didn't know who he was or where he belonged and that he needed to maintain contact with his grandmother but to also establish his own identity in a long term placement. 63 Mr Broadbridge stated further that he perceived that A needed to live in secure and predictable surroundings. He agreed that A's cultural needs were an integral part of any case plan for As future and suggested that a full health care review was also necessary for A's well being. Findings of fact 64 The Tribunal had the benefit of several professional reports, clinical expertise and direct evidence of persons who had knowledge of A B's past and current presentation. Very little of this evidence was in issue, however there are a few contradictions which should be dealt with. 65 In the absence of any convincing evidence to the contrary, we accept Mrs B's evidence that she drinks alcohol in moderation and that this does not adversely affect her parenting ability. We accept A's assertion that John has hit him with a belt, despite Mrs B's denials. A is unlikely to have volunteered this information if it wasn't true. It is also consistent with his allegations that he hit the dog and with Mrs B's comments that he gets angry with A sometimes. In these circumstances A should not be placed in an environment where John lives or visits regularly. 66 Mrs B does not deny that she has been unable to protect A from his mother's violence in the past. Where Mrs B and the Department differ is what the likely future scenario will be. Mrs B maintains that she will be able to resist her daughter's cries for help in the future and will not expose A to her abusive behaviour. Based on the Mrs B's past record, the Department does not accept that this is the case. Mr Bourke agrees with the Department's assessment. We also accept that A would be at risk of observing and/or experiencing abuse from his mother if he remains in Mrs B's care. 67 Mrs B and the Department also differ on the likelihood of Mrs B being able to learn the parenting skills appropriate for a child with A's emotional and developmental needs. Despite Mrs B's assertions that she can learn these skills, the clear evidence from Ms Girvan, an experienced consultant, is that despite a concerted effort, she was unable to teach Mrs B these skills. 68 Based on all that we heard and read about A's history and presenting needs, we have reached the following conclusions: · A has had a very destabilising and insecure background from which he witnessed and was subjected to, situations of abuse and neglect. · When in the care of his grandmother, Mrs B, he continued to be exposed to situations of risk from which she did not, or could not, protect him. · Since entering foster care A has demonstrated his potential to overcome many of the challenges of both his ADHD diagnosis and his dysfunctional background. His placements to date have achieved a great deal and there is a solid and positive communication strategy in place between the school and the Department of Community Services. · A and his grandmother have a strong bond which was attested to by A himself and almost all who gave evidence. His needs however, are complex and require a range of skill and consistency which the Tribunal believes Mrs B is not able to provide. · A wishes to stay in the care of his grandmother. He has expressed this view clearly and consistently. Mrs B fulfils a vital role in A's life which paid carers cannot replace. She loves A and he loves her. · A should be placed in accordance with the Aboriginal Child Placement Principle set out above. 69 The Tribunal has decided to affirm the Department's decision to remove A from the care of Mrs B, despite the fact that this is contrary to his wishes. While it is understandable that he wants to remain with his grandmother, we have found that she is unable to protect him from potential abuse from his mother, nor does she have the skills needed to parent A effectively. It would be in A's best interests to be placed, consistently with the Aboriginal Child Placement Principal, in the care of long term foster carers who are motivated and committed and capable of providing a high level of care for him. His progress academically and socially while he has been in short-term foster care away from his grandmother demonstrates the benefit to A of such a placement. Any long term carers, if they are not Aboriginal must be committed to ensuring that A understands and identifies with his aboriginality. It is also important for A to maintain a strong and meaningful relationship with his grandmother. 70 Mr Keith Bourke, Clinical Psychologist recommended and we agree, that irrespective of his care placement, it is in A's best interest to maintain consistent contact with his grandmother and his siblings. Specifically, he suggested that the relationship between A and Mrs B involve structured and purposeful activities which occur on a regular basis 71 The Tribunal recommends that future case plans include detailed strategies to implement Mr Bourke's recommendations and that the success or otherwise be carefully monitored and evaluated. The Tribunal also acknowledges that as A ages his needs and views will change and that these needs and views should be taken into account in any decisions that concern him. 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.