Local Court of New South Wales CITATION: Re Lawrence [2008] NSWLC 24 JURISDICTION: Children's Court PARTIES: Director General of Department of Community Services; Re Lawrence FILE NUMBER: PLACE OF HEARING: Moruya DATE OF DECISION: 05/09/2008 MAGISTRATE: Magistrate C Bone CATCHWORDS: Previous removal - circumstances that gave rise to previous removal LEGISLATION CITED: Children and Young Person's Care and Protection Act 1998 CASES CITED: TEXTS CITED: REPRESENTATION: ORDERS: 1. 'Lawrence' was born in [ ] Hospital on 1st July, 2007. On 3rd July, the Director General (DOCS) made an application to the Children's Court in which an order was sought allocating parental responsibility to DOCS. The parents of the child are 'Ms Allnut' and' Mr Miller'. Lawrence was removed from them prior to the mother's discharge from hospital. The grounds upon which the application is based is that the child has been, or is likely to be, abused and that the child's basic physical, psychological or educational needs are not being, or are not likely to be, met by his parents. 2. There is no suggestion that this three day old baby was being abused or that his basic needs were not being met while he was in hospital. The application is based upon the mother's past history. It is DOCS' contention that Lawrence is a child in need of care and that contention is supported by Lawrence's solicitor. It is the contention of the parents that Lawrence is not a child in need of care. Background 3. The evidence brought by DOCS was contained in the affidavits of Hannah Halliburton, the caseworker originally in charge of the matter, and Tina Whalen, the caseworker who replaced Ms. Halliburton. Their evidence consisted mainly of material which had been presented in cases which had involved other children in respect of whom prior applications had been brought under the Children and Young Person (Care and Protection) Act, 1998. The evidence can be summarised as follows: · On 29th October, 1998, 'Katie Allnut' sustained a fracture of her right tibia; Katie, who is Ms Allnut's niece and was six months old at the time, was in Ms Allnut's care at the time. Ms Allnut advised that she had fallen from a caravan step while holding the child. · In May, 2003, 'Renee Allnut' was admitted to hospital suffering significant breathing and other problems. Examination revealed severe head injuries which, according to an expert witness, were "classical for the so-called 'Shaken Baby Syndrome' which encompasses shaking and impact". Immediately prior to her admission into hospital Renee, who was also a niece of Ms Allnut and was about six weeks old, was being cared for by Ms Allnut and 'Ms Smith', Ms Allnut's mother. · 'Tina Allnut' was born on [ ] 2004 in John Hunter Hospital, Newcastle. Her mother is Ms Allnut and her father is 'Mr Jones.' Tina was removed from her mother's care six days after her birth and care proceedings were commenced. It was concluded by the Children's Court at Toronto that Tina was a child in need of care and, on 15th September, 2005, a final order was made allocating parental responsibility for Tina to the Minister until her eighteenth birthday. 4. DOCS was advised of Ms Allnut's pregnancy well before Lawrence was born. Legal issues 5. Sections of the Act which are relevant to the matter are as follows: 60 Definitions In this Act: "care application" means an application for a care order. "care order" means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86. "care proceedings" means proceedings under this Chapter. 61 Applications for care orders (1) A care order may be made only on the application of the Director-General, except as provided by this Chapter. (2) A care application must specify the particular care order sought and the grounds on which it is sought. 71 Grounds for care orders (1) 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 and protection for any of the following reasons: (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, (b) the parents acknowledge that they have serious difficulties in caring for the child or young person and, as a consequence, the child or young person is in need of care and protection, (c) the child or young person has been, or is likely to be, physically or sexually abused or ill-treated, (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, (e) the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living, (f) in the case of a child who is under the age of 14 years, the child has exhibited sexually abusive behaviours and an order of the Children's Court is necessary to ensure his or her access to, or attendance at, an appropriate therapeutic service, (g) the child or young person is subject to a care and protection order of another State or Territory that is not being complied with, (h) section 171 (1) applies in respect of the child or young person. (2) 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 disability, or (b) poverty. Note. The Children's Court cannot make a care order in circumstances to which section 75 (2) applies. 72 Determination as to care and protection (1) A care order in relation to a child or young person may be made only if the Children's Court is satisfied, on the balance of probabilities, that the child or young person is in need of care and protection or that even though the child or young person is not then in need of care and protection: (a) the child or young person was in need of care and protection when the circumstances that gave rise to the care application occurred or existed, and (b) the child or young person would be in need of care and protection but for the existence of arrangements for the care and protection of the child or young person made under section 49 (Care of child or young person pending care proceedings), section 69 (Interim care orders) or section 70 (Other interim orders). (2) If the Children's Court is not so satisfied, it may make an order dismissing the application. 6. A more recently enacted provision of the Act has been the subject of significant attention as the present case has unfolded. That provision is s.106A which states, in part: 106A Admissibility of certain other evidence (1) The Children's Court must admit in proceedings before it any evidence adduced that a parent or primary care-giver of a child or young person the subject of a care application: (a) is a person: (i) from whose care and protection a child or young person was previously removed by a court under this Act or the Children (Care and Protection) Act 1987 , or by a court of another jurisdiction under an Act of that jurisdiction, and (ii) to whose care and protection the child or young person has not been restored, or (b) is a person who has been named or otherwise identified by the coroner or a police officer (whether by use of the term "person of interest" or otherwise) as a person who may have been involved in causing a reviewable death of a child or young person. (2) Evidence adduced under subsection (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection. (3) A parent or primary care-giver in respect of whom evidence referred to in subsection (1) has been adduced may rebut the prima facie evidence referred to in subsection (2) by satisfying the Children's Court that, on the balance of probabilities: (a) the circumstances that gave rise to the previous removal of the child or young person concerned no longer exist, or (b) the parent or primary care-giver concerned was not involved in causing the relevant reviewable death of the child or young person, as the case may require . 7. Section 106A has been the subject of consideration by the Supreme Court of New South Wales in SB v. Parramatta Children's Court (Price, J., 20th November, 2007). The three basic propositions of law which are settled by this decision are: · the section does not create a ground for concluding that a child is in need of care; the only grounds upon which such a conclusion may be reached are to be found in s.71; His Honour said, at paragraph 52 of his judgement "It seems to me that evidence adduced under subsection (1) is prima facie evidence which if not rebutted may satisfy the Children's Court on the probabilities that the child or young person is in need of care and protection for any relevant ground in s 71(1). If the Children's Court is so satisfied, a care order in relation to the child or young person may be made under s 72" · persons other the person who was responsible for the care and protection of the child who was the subject of the earlier order have a right to appear in the current case and produce evidence that circumstances have changed if they would ordinarily have a right to appear, and · while not obliged to do so, the court can "re-visit" the detail of the first case. 8. It should be noted, in the present case, that although I had affidavits from DOCS officers which included, in part, some of the material before the Children's Court at Toronto, I admitted into evidence, on my own motion and without objection, the court file from Children's Court at Toronto. Evidence 9. In addition to the evidence from the DOCS officers, I received affidavits and heard oral evidence from Ms Allnut and Mr Miller and received the affidavit of 'Cathleen Breen', a friend of the parents. I will refer to the evidence of the parents later. Ms. Breen is a friend of the parents and indicated in her affidavit that she had given them advice about child-rearing during the pregnancy and would be available to assist them with their new baby. She has known Mr. Miller for over twenty years and Ms. Allnut for three years. They have baby-sat her children. Ms. Breen described them as an affectionate couple. It emerged during the cross-examination of Mr. Miller that he and Ms. Allnut have not seen much of Ms. Breen in recent times and did not expect to in the future. Conclusions relating to Katie Allnut and Renee Allnut 10. The conclusions which I have reached are as follows. It would be difficult to give much weight, in the present case, to the injuries which were sustained by Katie Allnut and Renee Allnut. There was medical opinion received into evidence in the Children's Court at Toronto which indicated that the injury sustained by Katie Allnut could have been received accidentally, in the way in which Ms Allnut said it was received. In the case of Renee Allnut, the evidence suggests that the child was being cared for by both Ms Allnut and her mother, Ms Smith and neither could be eliminated as the perpetrator of the actions which almost certainly led to those injuries. The provisions of s.106A do not apply to these children because Ms Allnut was not a person who was responsible for the care and protection of those children. Conclusion relating to Tina Allnut 11. It was concluded by the Children's Court at Toronto that Ms Allnut was not a person who could properly retain parental responsibility for her daughter, Tina. Reports from Nick Paris, a Children's Court clinician, and Toni Single, Senior Clinical Psychologist at John Hunter Children's Hospital were admitted into evidence. Ms. Single said that "Ms Allnut presented as a child-like twenty three year old who was obviously developmentally delayed." She noted that the mother had been unable to learn even the most basic parenting tasks. Ms. Single concluded that, in many cases in which a mother might have such difficulties, a child could remain with the mother with a responsible adult available to provide substantial assistance but, in the case of Ms Allnut, the family was extremely dysfunctional, Ms. Allnut had a propensity to "lash out" physically and there was the history relating to Katie Allnut and Renee Allnut. Mr. Paris was not quite as pessimistic as Ms. Single when it came to the mother's long-term ability to care for her child but he was not sufficiently optimistic to recommend that the child be returned to the mother (he suggested the child be a ward for twelve months with the child to live with Ms Allnut on the proviso that Ms Allnut lived with her mother and that appropriate parental education be provided to the mother). He said "there is no doubt that Toni Single ………. has some legitimate concerns both about Ms's and her mother's parenting capacity". He indicated that these concerns were supported by the observations of hospital staff. He accepted that it was difficult to argue with Ms. Single's cognitive assessment which indicated that the mother had a generally low level of functioning. It is apparent that Mr. Paris considered that Ms Allnut was incapable of properly caring for her daughter without significant assistance. Current circumstances 12. Both Ms Allnut and Mr Miller gave evidence and were extensively cross-examined, particularly by Mr. Bartlett for DOCS. Mr. Miller and Ms. Allnut have lived together since late 2005. They reside with Mr. Miller's father in the Batemans Bay area. Mr. Miller, who is thirty six years old, receives a disability pension as he has a permanent kidney problem. His father, 'Geoffrey', is sixty and is, to use Mr. Miller's words, "really, really sick". Mr. Geoffrey Miller suffers from diabetes. 13. Ms. Allnut said in her affidavit "I know I am slow and stuff but I am not absolutely hopeless. I can learn how to care for Lawrence by doing it and people showing me how. I have Cathleen to help me and [Mr Miller] is good with kids too. I also have {Mr Miller's] dad, Geoffrey ………" 14. Ms. Allnut gave me the impression that she would do her best to ensure that her child was cared for lovingly and competently but, when she was asked basic questions about the care of a baby, it became obvious that her current knowledge was not such as was to enable her to adequately care for the child if she was without the assistance of a competent person. 15. Mr. Miller demonstrated a good knowledge of child-care. He was asked questions about feeding a baby and what to if a baby was ill or there was an emergency and his responses were delivered clearly and with little hesitation. 16. Both parents indicated that they can tend to have a short temper but each has indicated a strategy to deal with the issue. Ms. Allnut said that she would go to her room and Mr. Miller said that he would go for a walk. He was asked if Ms. Allnut would be right to care for the baby in such circumstances and he said "Yes, because dad would be there to help her". Conclusion 17. The Children's Court at Toronto concluded, in 2005, that Ms Allnut could not provide the basic needs of her daughter. The issue today is whether Lawrence Miller's basic needs can be provided by his parents. There is little, if anything, before me to indicate that Mr Miller is incapable of providing those needs. There is compelling evidence that Ms Allnut cannot meet her child's needs. She has demonstrated little knowledge of what is required to properly feed a baby and it is clear from her own affidavit and from Mr. Miller's evidence that she would need help to care for the child properly. 18. Have, to use the phraseology of s.106A, "the circumstances that gave rise to the previous removal" changed? There is no doubt that Ms Allnut's circumstances have changed. She is in an apparently stable relationship (the father in the previous case seems to have played little part in Ms. Allnut's life) and Mr. Miller has demonstrated a competence in the matter of child-rearing. The circumstances which provided the real basis of the earlier decision, however, related to Ms. Allnut's ability to meet the needs of her child. External circumstances have changed but those circumstances have not changed. 19. In an exceptional case, a court might conclude that a second child was not in need of care even if a parent's child-caring abilities had not altered. It is, I suppose, possible that a parent whose first child was removed might form a subsequent relationship with a person with extremely good child-caring abilities who was to remain at home and care for the second child at all times. In the current case, there is ample evidence that Mr. Miller and his father have significant health problems and are away from their home for significant periods to obtain medical care (Mr. Miller attends hospital three times a week for his treatment and his father's diabetes is severe to the point that he has had amputations). It is obvious that Ms. Allnut would be alone with Lawrence for substantial periods of time. 20. I am satisfied that Lawrence Miller is a child in need of care. 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.