Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AMS v The Department of Family and Community Services (No 2) [2013] NSWADT 311 Hearing dates: 25 July 2013, 19, 20, 21 & 22 August 2013, 29 & 31 October 2013 and 1 November 2013 Decision date: 01 November 2013 Jurisdiction: Community Services Division Before: Hon G Mullane - Judicial Member Dr J Green - Non-Judicial Member Prof P FOREMAN - Non-Judicial Member Decision: 1. The decision of the Director-General of the Department of Family & Community Services to maintain the placement of Q with BND and BNP is confirmed. 2. The Tribunal recommends that the Department ensure that substantial contact is provided for Q with the members of the Applicant's household, especially his siblings P and L. Catchwords: Review of decision to place 3 year old black Anglo African child in long term foster care of white foster carers who have cared for him since 5 days after birth - Issues re proposals about African culture, Muslim religion, racism, benefits of placement in same household as brother and half-sister, and consequences for child of severing all his established attachments by moving him. Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Administrative Decisions Tribunal Act 1997; Cases Cited: Commission For Children and Young People -v- V [2002] NSWSC 949; B Appellant Mother and R Respondent Father and the separate Representative [1995] FamCA 104 Category: Principal judgment Parties: AMS (Applicant) The Department of Family and Community Services (First Respondent) BNP (Second Respondent) BND (Third Respondent) The Child's Guardian Ad Litem (Fourth Respondent) AMT (Fifth Respondent) Representation: Counsel: Mr PJ Braine for the Applicant & the Fifth Respondent Mr PL Harper for the Department Ms E Pender for the Third and Fourth Respondents Mr S A Gardiner for the Child's Guardian Ad Litem Solicitors: McCabes Lawyers Pty Ltd, (First Respondent) Winn Legal, (Second & Third Respondents) File Number(s): 124031 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies REASONS FOR DECISION INTRODUCTION 1 Q is a 3 year old boy taken into the care of the Department from birth. He has since lived with foster parents (the third and fourth respondents) in the Newcastle area. He was the subject of an order of the children's Court at Broadmeadow on 5 October 2011 giving the Minister parental responsibility for him until he turns 18. 2 The applicant (AMS) is the mother of Q's half-sister L and also has the long term foster care of Q's full brother P. She lives in a regional centre Rtown. AMS applied to the Department for the long term foster care of Q. It appears that this happened in late 2010. There was a Relative and Kinship Care Comprehensive Assessment by a Mayfield Caseworker, Maria Dimecola, in December 2010. Then on 24 January 2011 preparation of an Assessment Report for Authorised Relative and Kinship Carers commenced. It was an assessment of AMS as to her suitability to be a long term carer for Q. It did not consider any other option. The Department after investigations and assessments decided to support "AMS's" proposals and told her it would. 3 But the Department later changed its mind and it proposed at the hearing in the Children's Court when orders were made that the Minister would have parental responsibility for Q till he is 18 that Q would remain in the care of the third and fourth respondents (BND and BNP) till he turns 18. 4 AMS applied for an internal review of the Department's decision to not give her the long term care of Q. The internal review confirmed that decision. AMS applied to the Tribunal to review the Department's decision. BND and BNP supported the Department's decision and became parties in the proceedings. AMS's partner AMT, who supported AMS's proposals, and the Children's Guardian also became parties. THE EVIDENCE 5 The evidence in the proceedings comprises the following: 1-53 Tender bundle from the Department of Family & Community Services (pursuant to s58); 54 Application for Review of a Decision filed 16 November 2012; 55 Affidavit of AMS sworn 15 November 2012; 56 Affidavit of Shane Reed sworn 8 February 2012; 57 Affidavit of AMS sworn 21 February 2013; 58 Affidavit of AMT sworn 25 February 2013; 58 Affidavit of BND sworn 30 April 2013; 59 Affidavit of BNP sworn 12 June 2013; 60 Affidavit of BND sworn 12 June 2013; 61 Affidavit of mother of BND sworn 12 June 2013; 62 Affidavit of father of BND sworn 12 June 2013; 63 Affidavit of AMS sworn 5 July 2013; 64 Affidavit of AMT sworn 5 July 2013; 65 Report of Alison O'Neill (Psychologist) of 10 April 2013; 66 Report of Associate Professor Carolyn Quadrio (Psychiatrist) of 19 July 2013; 67 Affidavit of AMT sworn 8 August 2013; 68 Affidavit of AMS sworn 22 August 2013; 69 Affidavit of AMT sworn 22 August 2013; 70 Affidavit of AMS sworn 11 October 2013; 71 Exhibit D1: Affidavit of Lynette Ledger sworn 21 August 2013; 72 Exhibit D2: File Note record from the Department of Family & Community Services of 19 August 2013; 73 Exhibit D3: Relative Kinship Carer Assessment Report, email from Shane Reed of 15 August 2013 to Mary Evans, and emails between Caitlin Johnson and Peter Braine; 74 Exhibit D4: Letter from McCabes Lawyers of 15 August 2013 to Winn Legal and e-mail of same date from McCabes to Winn Legal; 75 Exhibit D5: Human Services/Community Services Policies for Placement of Siblings in Out-of-Home Care and Permanency Planning Policy; 76 Exhibit W1: Clearance Certificates for AMS and AMT dated 13 and 14 August 2013; 77 Exhibit W2: Statutory Declaration of D B and N Halimi; 78 Exhibit W3: Psychology Report of Ms Alison O'Neill of 14 August 2013; 79 Exhibit W4: Letter of 18 April 2013 from McCabes to Peter Braine and Reg Pollock, and e-mail of 18 April 2013 from Rebecca Wilson to Peter Braine; 80 Exhibit W5: NSW Police Facts Sheet in relation to incident involving AMT on 17 July 2004; 81 Exhibit W6: Letter from office of Children's Guardian to Rtown Court House requesting documents in relation to offence involving AMT together with documents produced; 82 Exhibit W7: Authorisation Advices from the Department to BND and BNP of 7/2/11 and 8/3/12; 83 Exhibit N1: COPS record in relation to incident on 17 July 2004 and criminal history and bail report of AMT; 84 Exhibit N2: Email from Case Worker Kate Stojanovski to the BND and BNP of 26 October 2011, reply of same date enclosing photographs of Q, and reply by Stojanovski of 27 October 2011; 85 Exhibit N3: Letter from Winn Legal of 19 July 2013 to McCabes and letter from Winn Legal to McCabes of 7 August 2013; 86 Exhibit N4: Photographs of Q and others; 87 Exhibit N5: Criminal history and bail report of AMT and documents from NSW Police External Agencies Team including COPS report in respect of incident on 17 July 2004; 87 Cross-examination of Alison O'Neill; 88 Evidence-in-chief and cross-examination of Shane Reed; 89 Cross-examination of Professor C Quadrio; 90 Cross-examination of Lynette Ledger; 91 Evidence-in-chief and cross-examination of Mary Evans; 92 Evidence-in-chief and cross-examination of AMS; 93 Evidence-in-chief and cross-examination of AMT; 94 Evidence-in-chief and cross-examination of BND; 95 Further oral evidence and cross-examination of Ms O'Neill; 96 Evidence-in-chief and cross-examination of BNP. Q 6 Q was born in Australia on 27 July 2010 and at the time of the decision was therefore 3 years and 3 months of age. He was born in Newcastle to his white Caucasian Australian mother ("the natural mother"), and his black African father from Gambia ("the natural father)". Q is a black boy of African appearance. The Department assumed care of Q at his birth. 7 Five days after his birth, the Department placed Q in the care of BNP and BND. Q has been in their care continuously since then. Q has met his developmental milestones, often early. He walked at 9 months and started talking at that age. His first words were "clap" and "car". Q is a very active, very sociable and very happy child. He enjoys preschool gymnastics, a church playgroup on Thursday mornings, the African playgroup on Thursday afternoon, accompanying the other children to their Saturday sport, visiting friends or visits by friends, and swimming lessons. He now can swim without floaties. 8 BND told Ms O'Neill that Q is "awesome and beautiful". She said that as a baby he settled well into a routine and was "smiley" as an infant. He is now "smiley", lovable and extroverted. She said the family members love cuddling him. 9 On 5 October 2011, the Children's Court at Broadmeadow made an order providing for the Department of Family and Community Services to have parental responsibility for Q until he attains the age of 18 Years. 10 The order was based on a finding that there was: "No realistic possibility of restoration" of Q to either of his parents. The natural mother presently resides in Sydney. The natural father's whereabouts are not disclosed by the evidence, except that he is currently incarcerated. Although the natural mother has continued to have occasional short periods of supervised contact with Q 2 to 4 times a year, the natural father has rarely spent time with Q, and not at all for more than 2 years. One reason is that he has spent considerable time in gaol. The natural mother has also had telephone contact with P about once per month. It is common ground that there is no realistic possibility of restoration of Q to either (or both) of his parents. 11 Prior to the Children's Court order, AMS had approached the Department and had asked that Q be placed in her care for the long term. AMS was married to the natural father in 1996 and they divorced in 2003. Q's half-sister, L, is the child of that marriage. She was born on 6 July 2001 and has lived in AMS's care since birth. P is the first child of Q's natural parents and was born on 4 September 2005. He was surrendered by his mother into AMS's care on 17 November 2007 and formally placed by the Department in AMS's foster care (till age 18) on 6 February 2009. P is a black boy of African appearance. There is noticeable resemblance between Q and P. 12 Q has another 7 half siblings fathered by the natural father to different women. The mother of 3 is a Gambian woman and she and the 3 children, who were born before AMS's relationship with the natural father, have never left Gambia. The remaining half siblings were born to 4 different Australian women. One half-brother, M, who is described by AMS as "Anglo-African", lives in Rtown and has spent time with P and L. Q also has another older half-brother E, who turns 11 in January and is the son of the natural mother and DL. E and DL live on the North Coast of NSW not far from BNP's parents. It appears that E is white skinned and not of African appearance. On one occasion recently BNP took Q to see E and they played together happily and held hands. DL has suggested that more contact be arranged. 13 The Department, after investigation, assessments and preparation of reports, supported AMS's proposal that Q live with her and told AMS of that decision. However, the Department subsequently changed its mind and supported the alternative of Q remaining in the care of BND and BNP. That was the proposal it put to the Children's Court and the decision of the Children's Court was made relying on that proposal. 14 AMS, acting in reliance upon the Department's communication to her that it would support her application, did not appear or have legal representation in the Children's Court proceedings and did not file any evidence on her own behalf. She first learned that the department had changed its proposals on about 8 September 2011 from a phone call from the natural mother. As a result she telephoned the Department and from that call confirmed that the Department was not supporting her proposals, but retention of the present care arrangement. It was not till after the Children's Court orders that the Department informed her in writing that it had abandoned her proposal prior to and at the Children's Court hearing. 15 After the Children's Court's decision made under s79(1)(b) of the Children and Young Persons (Care and Protection) Act 1998, when AMS became aware of the orders made, she made an application pursuant to s53 of Administrative Decisions Tribunal Act 1997 for an internal review of the Department's decision not to support her proposal for Q to be placed in her care. The internal review result was confirmation of the placement with BND and BNP. 16 In May 2012 AMS wrote by email to BND and BNP forwarding some photographs of P and L and asking about contact between Q and her family. The contact then occurred in the Newcastle district and in Rtown for day periods in 2012 on August 10.11. & 31, September 1, October 12, and December 15 & 16. According to BNP's evidence, as at 12 June 2013 the total time that Q had spent with AMS, AMT, L and P was 22 hours. There were no overnight stays. 17 Consequently AMS made the subject application filed 16 November 2012 for the Tribunal to review under s63 of the Administrative Decisions Tribunal Act 1997 the decision for long term placement of Q with the BND and BNP. The decision is a reviewable decision by virtue of the provisions of s245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998. 18 Q's first contact with AMS and AMT and the children living with them was in August 2012 when Q was more than 24 months of age. That contact occurred at Blackbutt Reserve in Newcastle. The children present were P, L, Q and C (a short-term foster child). It was supervised by an Officer of the Department and the children enjoyed themselves playing together on the play equipment and also walking viewing the animal enclosures. There was a further session of day contact the following day at "Mega Mania" indoor children's space. The children again appeared to enjoy themselves jumping on the jumping castle, interacting and playing games. 19 The next contact Q had with the members of AMS's household was on 31 August 2012 at the Foreshore Park in Newcastle. Again the children had similar levels of high energy and enjoyment. The next day there was another period of contact at the Speers Point playground. BND and BNP's children also attended. 20 The next occasion of contact occurred on 12 October 2012 at the Foreshore Park, Newcastle, and the Newcastle Museum. Q was with AMS, AMT and the children from their household without supervision and the children enjoyed their interactions and activities. 21 There was subsequently day contact in Rtown on each of 15 December 2012 at Children's Garden and Rtown West Public Undercover, and then on 16 December at "....Playground, Rtown", without supervision. These occasions involved exchanges of gifts for Christmas and also extensive activity and fun by the children. On the second occasion AMS and AMT took Q with the children to see their home. The first of these occasions was more than 2½ hours and the second occasion appears to have been a similar period. 22 In March 2013 Q spent limited time with AMS and the members of her household in Rtown for the purpose of observations by Ms O'Neil, a psychologist instructed by the solicitors for the Department. There was further contact by Q with them in Newcastle for several hours on each of 15 & 16 June 2013. By the time the hearing commenced in July 2013, Q had spent a total of about 28 hours with the members of AMS's household; and all in the preceding 12 months. RELEVANT LEGISLATION 23 Section 9 of the Children and Young Persons (Care and Protection) Act 1998 provides: 9 Principles for administration of Act (1) This Act is to be administered under the principle 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. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows: (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, 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 or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, thiswillinclude the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. 24 Sections 63 and 64 of the Administrative Decisions Tribunal Act provide: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 64 Application of Government policy (1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: "Government policy" means a policy adopted by: (a) the Cabinet, or b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators. RELEVANT GOVERNMENT POLICIES 25 Exhibit D5 comprises the NSW Government policies for placement of siblings in out-of-home care and permanency planning. The relevant parts provide: PLACEMENT OF SIBLINGS IN OUT-OF-HOME CARE 1. Focus of policy This policy is designed to provide guidance to caseworkers in situations where a sibling1 is already in care at the time one or more other siblings come into care. The intent of the policy is to provide guidance to caseworkers making decisions about placements and placement changes of siblings. The particular issue that the policy seeks to address relates to balancing the needs of siblings to be together against the imperative to maintain stable placements where positive attachments have been formed. 2. Background In relation to achieving positive outcomes for children in care research shows: · there are considerable benefits in placing siblings together with a shared parent or carer · the greater the stability and permanency associated with a placement the better individual life outcomes will be. The general practice principle is that siblings be co-located in care (co-placed), but there are also cases where this principle should not override other equally important policy principles. Caseworkers can be confronted with situations where the principles of co-location and placement stability are in tension with one another. This can occur where siblings enter care at different times and placement with the carer of the child who first entered care is not practical. In these cases the desirable general principle of reuniting siblings would potentially involve removing a child from an existing stable placement. There also be situations where it is not in the best interests of children to be co-located, generally because of the dynamics of risk that caused entry to care or issues associated with the well-being of a particular child. Co-location of siblings in care should therefore be balanced with the need for placement stability and the safety and wellbeing of each of the children. The key features of the policy can be summarised as follows: · The practice principle of co-locating siblings in care should generally be complied with · except where this principle would override other equally important policy principles such as each child's need for stability, permanence and safety. · The policy proposes general principles about circumstances in which co-placement should not be the automatically prevailing practice preference. Cases where attachments and stable placement would be disrupted is one such principle and to operationalise this principle, the length of time in a placement for a sibling currently in care is identified as a trigger for closer consideration and assessment of the balancing consideration of placement stability as against relocation of the sibling to be with later entering siblings · Time is applied as a trigger for consideration as to whether attachment is such that co-placement should not be favoured at the expense of disrupting the placement. There is also recognition that the age of the child affects the nature and extent of attachment. Where a sibling under the age of two has been in a short term placement for less than 6 months caseworkers should seek to place siblings together by: · asking the child's carer if they can accommodate the sibling group; · asking Community Services foster carers in the same region as the children's family if they can accommodate the sibling group; · asking non-government agencies if they can identify or provide a sibling placement; and · considering other placement types such as supported family group homes, intensive foster care or supported independent living. If the sibling in care is older than 2 years, the placement term may be up to 12 months before there is an assumption that an attachment has formed such that co-location objectives may be displaced. · Where it is necessary to place siblings apart to avoid disrupting a stable placement, caseworkers should endeavour to place as many of the siblings together as possible: - place siblings in reasonable proximity to each other; - ensure regular contact between siblings; and - conduct a case review within 6 months of placement which considers contact arrangements and specific actions to reunite children where appropriate. · Aboriginal children must be placed in accordance with the Aboriginal Placement Principles and the proposed policy. Priority must be given to placing Aboriginal siblings with a member of their Aboriginal community, or a member of another Aboriginal family residing in the vicinity of the child's usual place of residence. To help identify a placement that best matches each child's needs for kinship, attachment and permanence, consultation should occur with members of the siblings' extended family or kinship group, Aboriginal organisations and Aboriginal caseworkers. · Priority should be given to placing siblings from culturally and linguistically diverse backgrounds with carers from the same cultural, linguistic or religious background as their own. 3. Assessment and case planning In developing individual case plans for children coming into care, the views, preferences and situation of each sibling should be assessed to determine the desirability of co-locating siblings. An assessment of attachment issues should be undertaken by a psychologist, or by a caseworker in consultation with a psychologist. Once a child under 2 has been in a placement for 6 months, and 12 months for children older than 2, and there is no practical way of co-locating the later entry sibling with the child who is already in care, there is a need for assessment to guide placement decisions. The key objective of this assessment is to establish whether the degree of attachment in the pre-existing placement is such that this placement ought to be secured over and above opportunities for co-location. Co-placement should not be pursued where: · it is in the best interests of one or more of the children to be placed apart considerations here would include whether there is any suggestion of sibling involvement in the risk of harm to the other (eg sibling sexual abuse, physical or emotional harm); or · a child has been assessed as requiring a separate placement, in order to address serious health, behavioural, or emotional needs; or · it is in the best interests of a child to be placed with a relative who can provide a safe and stable home, but is not able to accept care for another child; or · a child has entered care 6 months or more after their sibling who is two or younger, or 12 months if older, significant attachment is considered to have occurred and the carer of the first child to enter care is unable to care for another child.2 4. Where a sibling two years of age or less has been in a short term placement for less than 6 months, or less than 12 months for older children: Except in cases where the best interests of the child or assessment contra-indicate co-location of siblings, caseworkers should place siblings together by: · asking the foster carer or relative carer of a child already in care whether they can accommodate the child's siblings for the short or long term; · asking available Community Services foster carers in the same region as the children's family whether they can accommodate the sibling group; · asking non-government foster care agencies in the same region as the children's family if they can identify or provide a sibling placement. In addition to general foster care other placement types such as supported/family group home care, intensive foster care, or supported independent living placements, where appropriate should be considered. 5. Where a sibling two years of age or less has been in a long term stable placement for over 6 months, or over 12 months if older than two years of age:3 Caseworkers should seek to place siblings together by first asking the foster carer or relative carer of a child already in care whether they can accommodate the child's siblings. If this is not possible and the siblings cannot be placed together without disrupting a stable placement, an alternate option should be pursued in line with the principles outlined in section 7. 6. Number of children in a foster care family The number of children placed in foster care should not exceed the maximum number of children a carer has been authorised to care for. Generally, no more than six children, including the carer's own children, can live in the carer's home.4 The Manager, Client Services, may approve an exemption to policy to secure an otherwise appropriate placement for a large sibling group of three or more children, provided: · the foster carer's capacity to adequately care for all children has been assessed; · the carer is authorised to care for the number of children; and · the home meets the basic housing and privacy needs of all children. 7. Placement of siblings apart When it is necessary to place siblings apart to avoid disrupting a stable placement, caseworkers should: · place siblings within reasonable proximity to one another, where appropriate; · place as many of the children together as possible; · assign one caseworker to all of the siblings, if possible; · ensure regular contact between siblings in accordance with their case plans (see 8 below); and · conduct a case review within 6 months of placement where a child is in long term care to ensure contact is occurring.5 The case review should involve consideration of specific actions to reunite children where this would be in the best interests of all children involved. 8. Sibling contact Sibling contact is a key issue to be addressed in the child or young person's case plan. In developing contact plans it is important to include the participation of the child or young person, as well as their carers, in the planning process. When it is necessary to place children apart, their relationships with other siblings in care or who remain at home should be retained through regular contact including visits, phone calls, letters and email, unless: · a Children's Court has ordered that no contact should occur; · the child is at risk of harm during contact and supervision would be inadequate to eliminate this risk; or · a young person aged 15 or over has stated that they do not want to have contact with their siblings. Children should be given an opportunity to voice their views about the type and frequency of contact. They should also be provided with information about their siblings whereabouts unless there is a court order prohibiting the disclosure of this information, or when a caseworker considers that disclosing this information could place the child or others in the household at risk of harm, or when contact is not in the best interests of the child or other children in the household. Retention of sibling relationships should be promoted by: · providing children aged seven and older' and their foster carers with each siblings name, birth date, address and telephone number and providing the same information to siblings who remain at home where possible; · informing siblings if a child has moved to another placement and providing details; · encouraging carers to assist children with writing, emailing and phoning their siblings as often as they wish; and · undertaking effective life story work with children and young people. 10. Placement of Children and Young People from Culturally and Linguistically Diverse Backgrounds Children and young people from culturally and linguistically diverse backgrounds should be placed in accordance with the principles in Sections g (c) and 9 (e) of the Children and Young Persons (Care and Protection) Act 1998, and in accordance with this sibling placement policy. Priority should be given to placing siblings with carers from the same cultural, linguistic or religious background as their own, and to placing siblings together wherever possible. Placement of siblings together is a strategy that could significantly assist them to retain connections with culture, language and religion. When making these decisions, consideration should be given to disadvantages that may arise if this involves disturbing placement of one sibling who is with carers committed to maintaining the child's culture and identity. Where it is not possible to place siblings together with carers from the same cultural, linguistic or religious background, then caseworkers should carefully assess whether the carer has sufficient understanding and appreciation of the cultural, linguistic or religious background of the siblings and is committed to maintaining their cultural identity. 11. Record keeping All decisions to place siblings together or separate should be documented on KiDS.7 The following types of documentation may be required to support these decisions: · mental health assessment, behavioural evaluations, sibling and carer relationship assessments; · responses to any known objections to the placement decision by interested parties such as parents, other relatives/kin, current carers, therapists, teachers, or medical professionals; · efforts taken to locate an appropriate sibling placement; · efforts taken to place separated children in close proximity to each other; · plans to reunite children in placement; and · plans to maintain sibling relationships while separated in placement. Permanency planning policy Executive summary This policy describes Community Services approach to case planning to achieve stability and a sense of permanency for children and young people for whom Community Services has care responsibility. The policy is based on extensive research on permanency planning for children and young people in out-of-home care, and emphasises the importance of a permanent and stable home for every child. If this cannot be achieved with the birth family, decisions about alternative long-term placements for such children must occur as early as possible. This is in line with the permanency planning sections of the Children and Young Persons (Care and Protection) Act 1998. A key aim is to avoid the detrimental impact on children of failed attempts at restoration with birth parents, unplanned multiple placements and drift in the care system. The current principles outlined in section 9 of the Act are currently being reviewed to ensure an appropriate focus on achieving permanency for children and young persons. A particular emphasis is under consideration indicating early consideration of restoration and where this is not possible or desirable, the provision of a long term, stable placement, including adoption. The policy is based on early and informed decision making with regard to permanency and states that following removal of a child from their parents, a decision about whether restoration of the child to their birth family is a realistic possibility (where appropriate) must not take longer than six (6) months for children under two years of age, and not longer than twelve (12) months for all other children and young persons. Where restoration is the goal, appropriate resources should be directed to its achievement. If restoration is not considered a viable option for the child or young person, a permanency plan that identifies other suitable tong-term placement options for the child or young person must be developed within these timeframes. This decision is based on assessment which takes into account the family's strengths, needs, culture, history, and the needs of the child. The assessment should be conducted openly and honestly with the birth family, the child and any other involved parties. Information collected in the assessment should be documented in a child's care plan when recommendations are made to the Children's Court regarding permanent care options. The policy also emphasises the importance of contact between a child or young person and members of their family regardless of the permanent care option selected, and provides guidelines for determining levels of contact and reviews of contact arrangements. In addition to the timeframes in relation to restoration of the child or young person to the birth family, the policy also reinforces the timeframes for placement reviews as set out in Section 150 of the Children and Young Persons (Care and Protection) Act 1998 and the content of reviews as described in The Office of the Children's Guardian Guidelines for a review of a child or young person pursuant to a court order. For interim placements of four months or more, a placement review must be undertaken no later than four months after the making of the order. For final orders placing children and young people in out-of-home care, placement reviews must occur within two months of the order being made for children under two years of age, and within four months of the order being made for children over two years of age. The importance of culture and religious ties are emphasised in the policy, particularly with regard to adherence to the Aboriginal placement principles. Where an Indigenous child or young person is to be placed in out-of-home care, all options within the child or young person's family (as defined in Aboriginal culture) should be explored. The policy also emphasises the importance of taking account of culture, language and religion and to preserve these as far as possible when considering the placement of children from culturally and linguistically diverse communities. Footnotes/definitions: 1 Siblings have been traditionally defined as full or half brothers and sisters with full siblings sharing both biological parents and half siblings sharing one parent. This policy primarily relates to sibling groups in this sense. However, It should be noted that there are certain situations where children have significant attachments to other children within their extended family whom they view as siblings, even though they do not fit the traditional definition of sibling. 2 Aligns with endorsed Permanency Planning Policy and Guidelines for interpretation of child protection and out-of-home care performance Indicators. AIHW 2002 p. 35, in which Australian practitioners and stakeholders generally agreed that placing siblings entering care within 6- 12 months of each other was desirable to achieve placement stability 3 Guidelines for Interpretation of child protection and out-of-home care performance indicators (AIHW 2002, p.35) - 'General agreement amongst Australian practitioners and stakeholders consulted that placement together or siblings entering care within 6 to 12 months of each other was desirable' 4 Business Help. Assessment and Approval of Carers. 5 This is in keeping with current practice. Business Help, Placement Reviews for Children and Young People in Out of Home care *Initial review within 2 months of final order if child is under 2 years and within 4 months of final order if child is 2 years or oIder and thereafter annually. 6 Illinois Department of Children and Family Services. Placement & Visitation Services, section 301.230 Contact Among Siblings Placed Apart, 2001 and Community Services Draft Contact Policy for Children and Young People in Out-of-Home care, 2006. 7 Adequate fields currently exit in KiDS to record relevant information in relation to siblings AMS AND HER PROPOSALS 26 AMS was born on 23 May 1960 and is 53 years of age. She is the Community Arborist with the Rtown City Council and has been in that work for 15 years. She works 3 days per week (Monday to Wednesday), starting at 9.30am. On those days AMT finishes early to collect the children from school. AMS began her working career with a capital city botanic garden and holds a Masters of Amenity Horticulture from a United Kingdom University. 27 Through her work she came in contact with AMT 15 years ago. AMT is the curator of the Rtown Botanic Gardens and has been employed by the Rtown City Council for 25 years. He has a Diploma in Horticultural Science. They have known each other through work for 15 years. He has worked with AMS for more than 9 years, they shared an office for 8 years, and they have been romantically involved as a couple for over 7 years. AMT was born on 8 July 1955 and is 58 years of age. He works full time for the Council. He enjoys his work. 28 AMT and AMS have cohabited since December 2012 in AMS's home in Rtown. Prior to them commencing cohabitation AMT was often at AMS's home and assisted her with the care of the children in the household. 29 AMS describes her relationship with AMT as: "Stable, committed and respectful", and she has testified: "AMT has always supported me and the children that have come into my care. We value family, education, environmental and humanitarian principles." 30 AMS returned to Australia in1996 and the natural father joined her in 1997. In 2000 or 2001 the natural father left AMS and Rtown for Newcastle after fathering M and S to 2 other women. 31 AMS has been an authorised foster carer in NSW since 2006. She has had a total of 13 children on emergency, short or long term placement. 32 In November 2007 the natural mother contacted AMS and asked for her to assume the care of P because she was having difficulty coping with the natural father's domestic violence and other misbehaviour. P was 2 years and 10 months old when he arrived into AMS's care in November 2007. 33 Any contact in Rtown by the natural father or the natural mother with P and/or L, has been supervised by AMS and/or AMT. 34 AMT has attended foster care workshops and has read many books on "Learning techniques, raising children, psychology and children's education". He has been a junior football, basketball and cricket coach for over 9 years. His evidence is that he relies on "positive reinforcement". He enjoys providing family holidays outdoors and sharing domestic duties with the children and AMS. 35 AMT has a history of involvement in professional associations for people working in Botanic Gardens or conservation of plants. He has a history of playing basketball and cricket. He has also assisted, coached, umpired, fundraised or done timekeeping for junior basketball teams, Little League Football teams and Rtown Swim Club. 36 AMT has recently completed and opened Stage 1 of the "Children's Garden" at the Rtown Botanic Gardens, involving early childhood carers, primary school teachers, family day carers, dieticians, and mothers, in the development of the design brief and fund raising efforts. He also conducts school education and art programs in the Botanic Gardens. He and AMS both work within 5 minutes of the home and the Gardens and they both have flexible work arrangements, which allow them to have time off when needed for the children. 37 For nearly 2 years now P has been, of his own volition, calling AMT "Dad" and "Daddy". AMT and P enjoy lots of time together, building things in the backyard, playing games, gardening and doing jobs at home and homework. P also enjoys visits to AMT's office and the botanic gardens. 38 L attends a selective state school and P attends the local public primary school. That school is described by AMS as: "culturally diverse". Both L and P are proficient swimmers. 39 AMT has known L since her birth and has a close relationship with her. He testified: "We spend lots of time together and L and I both enjoy photography and music, nature and exploring, trips to and from Fruit Fly Circus training and her friends coming over to visit." BND, BNP AND THEIR PROPOSALS 40 BND is 38 years of age. She is a qualified Nurse and worked as such until BNP and BND commenced fostering children. She has not been in paid work since then. Since Q has been a member of the household, she has not undertaken any paid work. She proposes to continue as a full time homemaker and parent. 41 BNP is a Civil Engineer, 39 years of age in full time employment. 42 BNP and BND were married in 1999. They met through the State Emergency Services (SES). They were both volunteers with the SES. BND was a volunteer for 10 years and BNP for 21 years. He has only recently resigned from the SES to give more time to caring for the children. BND was a qualified rescue operator, land searcher, flood rescue boat operator, and cross-cut and limb chain-saw operator. She was part of the team that went to Thredbo after the landslide in 1997. They both worked with the SES doing emergency repairs following a major hailstorm in 1999 in Sydney. 43 BNP was an Acting Team Leader at Randwick on numerous call-outs and when they lived in Wollongong he was a Training Officer. When they lived in Lithgow, he was the Unit Controller and received a medal for his work in the Canberra bushfires. He was a member of the Subject Matter Advisory Group for storm and water damage operations for several years and was a qualified/competent in a range of subject areas including general rescue, chain-saw felling, storm and water damage operations, flood rescue boat operations, and land search operations. As an SES Trainer, he trained numerous rescue operators. In 2007 he was awarded a national medal for his service with SES. 44 BND and BNP have fostered about 30 children. BND and BNP have 4 children of their own: 3 boys O about 15, T about 14, and Z about 10, and their daughter U about 8. 45 BND and BNP are Christians and each attends the Church one night a week for Bible Studies. They both attend with the children on Sundays for the Church Service. 46 In their home, the children all help with household tasks, according to what is suitable to their ages. Q sorts socks and sometimes is allowed to attempt using the vacuum cleaner. He also is very enthusiastic about feeding the dog. 47 BND's mother was a piano teacher for many years and gives the children piano lessons when she visits. O and T have been doing grade exams for piano. Q sometimes climbs up beside BND's mother when she is playing the piano and plays as well. BND's parents are both in choirs and play piano. 48 O, T and U all do piano practice. T also plays guitar and drums. BNP plays guitar. O also enjoys singing. Q has 2 toy guitars and attempts to play along. BNP has been learning to play the didgeridoo. Q likes dancing to music. He appears to have a good sense of rhythm and enjoyed preschool music classes in 2012. 49 The children have routines and their homework is done after school before dinner. BNP is usually home from work at 5.15pm and then assists BND with the children. 50 On weekends the children play sport and Q attends. In the past BNP has been the Team Manager for T's soccer team. He proposes that if Q continues to live with them, he be introduced to soccer and other sports. O plays tennis and he and the other children play tennis with BND's father. J (whom BNP and BND were fostering until recently) and Q came to watch the other children at sport. BNP often plays soccer and Q tries to play too. The evidence is that Q has very good co-ordination for his age. U plays netball and Z plays soccer. 51 The family goes to Church on Sunday mornings and on Sunday afternoons they visit friends or friends visit them. The children regularly go to birthday parties of their friends and Q has often attended parties, either for friends of the older children, or for friends of his own. 52 Both BNP's parents and BND's parents see the children regularly and treat the children, including Q, as their grandchildren. Q and the other children do cooking, swimming, tennis, gardening and boating with BNP and BND's parents and have sleep-overs and holidays with them. 53 BND's mother has looked after the children since they were babies. The children love her and say this to BND. They enjoy the grandmother's company. She talks to them, reads to them, plays piano with them, and also plays music with them. Q calls her: "Gran". 54 Q refers to BND's father as: "Cuppa". The other children now use that name for him. BND's parents visit about once a month. They baby-sit for BND and BNP and the children stay with them at their home on an acreage on the North Coast. They have a large organic garden and orchard, where the children spend a lot of time with BND's parents. BND's father has built each grandchild, including Q, their own garden bed and the children enjoy growing their own flowers and vegetables. The activities the children are indulged in when visiting there include boating, fishing, bushwalking, bike riding, caring for livestock and native animals, carpentry, camp fires and tractor rides. 55 BNP's parents also live on the North Coast and the children see them about once every 2 or 3 months. Q calls them: "Grandma", and, "Grandpa". They have a large yard with play equipment and numerous pets which the children enjoy playing with. The children also go with their cousins to the nearby river swimming and playing with inflatable toys. 56 BND has one brother who lives with his wife about 5 minutes away. They have a daughter about 4 and another about 2. Q does gymnastics with these girls each week. They are demonstrably affectionate towards each other, often hugging or holding hands. 57 BND has another brother who resides with his wife and children at Port Stephens. 58 BNP's sister and her husband and their 2 daughters live near BNP's parents and the children, including Q, enjoy activities there in the company of the cousins. 59 BND's parents both gave evidence in the proceedings. BND's mother says that she visits about every 2 weeks, often staying for 1 or 2 nights. She also gave evidence about the children staying with them for part of their school holidays. She says that she and her husband are devoted to all of their children and grandchildren, including Q, and much enjoy their relationship with the grandchildren. 60 BND's mother has joined Q and BND at the Thursday morning playgroup on a number of occasions. 61 BND's parents are keen to support their grandchildren, including Q, through "whatever study or training they choose to prepare themselves for their eventual careers". BND's mother says: "Q is a bright, loving, articulate little boy who is already showing the benefits of being part of our family." 62 BND's father described BND as having: "a natural empathy for other people", which she has had since childhood. He describes BND as a: "naturally talented sportsperson", and said that she was a school tennis player in her teens and coached younger players. He considers that Q is demonstrating athleticism. He also expresses the view that BNP is a: "very competent sportsperson", who plays cricket with the children, helps them play soccer, and attends their sport games. He also supervises the children on the trampoline at their home. 63 He also has observed that Q's relationship with BND is very close and whenever anything goes wrong for him, he goes to her for comfort. He cuddles her and calls her "Mum". 64 One of BND's brothers is married to a Chinese lady and their children are very close to Q. BND's other brother is married to a Filipino woman and their children are of Q's age group. BND's parents treat Q as their grandson. 65 At home Q shares a bedroom with U. He has done this since he turned 2. They have a close relationship and she has always: "taken care of him", as a sister. They play together for long periods of time in various play activities. U is quick to comfort him if he is upset. 66 BND and BNP have used "Attachment Parenting" for their own children for Q and with all the babies and infants who have been placed with them. 67 This Attachment Parenting for Q involved him being with them, or one of them, physically when he is awake and for his first 2 years he slept in a cot next to their bed at night. During the day either BND or BNP carried him in a sling next to his or her body and held him when he could not sleep at night until he went back to sleep. 68 BND has been Group Leader and breast-feeding counsellor for the Australian Breastfeeding Association who tend to practice this method of parenting, which is based on responding to a baby and child's needs straight away, not leaving them to cry. 69 BND's evidence is that when Q came to their care from the emergency carers, he appeared anxious and unsettled, his forehead was wrinkled and he cried and was wakeful. She had him in a sling with her and he slept next to their bed, and after a few days she observed he became more relaxed and settled. BND - PAST DEPRESSION AND ANTIDEPRESSANT MEDICTION 70 BND was interviewed by Ms Alison O'Neill, a Clinical Psychologist, on 13 March 2013, in the course of preparing an expert's report on instructions from the solicitors for the Department. BND told Ms O'Neill that she first suffered depression after BNP became ill with bowel cancer. At the time, she was sleep deprived and she was looking after two infants, their first two children, and one of them had reflux and screamed a lot. Her G.P. prescribed anti-depressant medication and she continued that medication for 12-18 months. She said she found it beneficial. 71 After the birth of her fourth child she experienced post-natal depression and again took the medication by her doctor's prescription. She has continued taking that medication for the past 5-6 years as she had experienced significant irritability and effects of PMT each month if she was not taking the medication. Her G.P. has continued to prescribe the medication, but she had not consulted a psychiatrist. 72 Ms O'Neill reported that BND was suffering "significant depressive symptoms" when interviewed, because she was stressed about the dispute concerning Q that had been on-going since July 2012, but had become worse since February 2013. BND said she has difficulty eating when she is very stressed, but she had adequate energy levels and libido. She said that apart from the stressful situation with Q, she was able to experience happiness and enjoyment from her usual activities. 73 Ms O'Neill reported: "Overall, it appears that BND has had several episodes of depression, which appear commensurate with Major Depressive Disorder, recurrent episodes." 74 Ms O'Neill said that her first depressive episode appeared to be in the context of multiple stressors, including her husband's illness, difficulties adjusting to parenthood, relocation and presumably a lack of support in a new town. She reported: "Her current functioning appears adequate, although she endorses some symptoms of depression. None the less, they are unlikely to impact on her capacity to care for Q or other children. She is, however, considered vulnerable to depression, should she experience severe stress in the future." 75 Associate Professor Carolyn Quadrio, Consultant Psychiatrist, prepared a shadow report based upon the factual bases of Ms O'Neill's report. She did that on instructions from the solicitors for BND and BNP. Professor Quadrio said that psychometric testing showed: "A shy and unassuming personality style, but no clinically significant issues and no substance abuse." She referred to the fact that BND and BNP have been fostering children since 2003 and have had some 30 children in their care. In addition to that, O has special needs because he suffers mild Asperger's Syndrome. 76 In cross-examination, Professor Quadrio said that the anti-depressant which BND has been taking is one of a newer group of anti-depressants. It has fewer side effects. She said she did not consider that BND needed to see a psychiatrist for a review, given the circumstances described in Ms O'Neill's report. She said that the particular medication is commonly taken for pre-menstrual tension and has very mild sedating effect and "45% placebo effect. It's not like Prozac." 77 Dr Quadrio persisted in her opinion that there was no need for a psychiatric assessment, but she said she thought: "She should be reviewed by her General Practitioner". She said that the symptoms that Ms O'Neill said BND was suffering did not warrant a psychiatric assessment. 78 That evidence was given by Professor Quadrio on 20 August 2013. 79 BND was not called until 31 October 2013. She said that she had not seen her G.P. since July and at that consultation in July they had discussed the whole situation regarding the anti-depressant "and he was happy". Her attention was drawn to the opinion of Professor Quadrio that she should see her G.P. for a review. She said she has a review every 6 months with her G.P. and, "I didn't see any urgency to go back". The next review would have occurred in January 2014. 80 Submissions were made suggesting that the failure of BND to arrange an earlier appointment with her G.P. for a review of her medication, given the suggestion of Professor Quadrio, reflected adversely on BND's parenting capacity. 81 The Tribunal does not accept that submission. The first reason is that there was a routine review by her doctor in July. The second reason is that there was no urgency in relation to the medication review, as the evidence did not establish that the medication was compromising her parenting capacity in any way. Q's SPIRITUAL NEEDS AND THE MUSLIM FAITH 82 Considerable emphasis has been placed on the spiritual needs of Q because of his father's wish that Q follow the Muslim faith. Most Gambians follow the Sub Saharan Muslim faith. There is no evidence whether the natural father is still a practising Muslim. Evidence that he did not comply with tenets of the religion when he was ion Gambia and when he was in Rtown, indicates that he probably isn't a practising Muslim. Q's mother is not a Muslim and there has been no evidence regarding her wishes concerning his spiritual needs. 83 A further issue is that Q has not seen his father for more than 2 years and does not know him. It appears, given what has transpired during his lifetime to date, that his father will see him only very infrequently and will spend very little time with Q in the future. It appears that members of his father's Gambian family are unlikely to have any significant contact with Q. 84 Regardless of which household Q lives in, the proposals are that neither the adults nor the children will be adherents of the Muslim faith. 85 The evidence does not establish a spiritual need for Q to be brought up as a Muslim. However, the Tribunal is satisfied the Muslim faith is an aspect of the Gambian culture and Q has a need to learn about the Muslim faith that is adopted by most Gambians. 86 It may be that the natural mother is of another religious faith. She may wish Q to learn about her faith. If so, Q could benefit from a knowledge of such faith. 87 The evidence does not disclose whether AMS and AMT are adherents of another religious faith or atheists. BND and AMT are committed Christians. 88 The evidence, for reasons set out later, establishes that in the care of BND and BNP, despite their own Christian commitment, Q is likely to develop a greater knowledge of the Muslim faith than with AMS and AMT. Q's PHSYCIAL SAFETY - AMT 89 Counsel for BND and BNP made a submission that if Q resided in AMS's household, there was an unacceptable risk of physical injury from assault by AMT. 90 This submission was based upon one incident on 17 July 2004. AMT's marriage began to break down in 1998. He and his wife also had problems with one of their sons, H, when he was in the last year of primary school. Then between Years 7 and 9 at Rtown High School he started associating with "undesirable" boys in the area and getting into trouble. The parents sought help from school counsellors and the local Community Health Centre, but without much success. 91 On 17 July 2004, AMT was at work and received a call from H's mother complaining that H had been physically and verbally threatening to his younger brother K all day. AMT had to go earlier that evening to care for his mother who was suffering Alzheimer's and residing in his sister's home. He arrived home at 9.45pm and was quite tired and sad after caring for his mother. He walked through the back door into the lounge room, and H was swearing obscenely at his mother. He told H to stop. His evidence is: "I told him that it was okay to argue and discuss issues respectfully, but swearing was not allowed. He and his mother continued arguing and swearing at each other. H had a friend, N, present in the home, however, I told H that his friend, N, would have to go home due to his treatment of both Jimmy and his mother during the day." 92 The evidence is that H's behaviour then escalated and he continued swearing and threatening his mother. He was verbally abusive and physically threatening. 93 AMT's evidence, which the Tribunal accepts, is: "At this stage I lunged at him to hit him on the arm, however, he reacted raising his arm, which caused my hand to deflect and hit him on the nose". H's nose was broken and bled. H or his mother later attended the Rtown Police Station and lodged a Complaint. AMT was charge with "Assault Occasioning Actual Bodily Harm", and went before the Local Court at Rtown on 9 August 2004. He pleaded guilty to the charge. The Magistrate found the offence proved, but did not record a conviction. The matter was dealt with by a Section 10 Good Behaviour Bond for 6 months, which included a condition that he not assault, molest, harass or otherwise interfere with the victim. 94 H has never visited AMS's home. 95 When AMT separated from his wife on 13 February 2005, he moved to a rented unit. H moved with him. He lived with his father then. He did not speak with his mother for almost 2 years. H's behaviour continued to be a problem and he left school in the March of his HSC year. He later moved to Melbourne and has since had some convictions for serious criminal offences. AMT has decided that he does not want H to visit him. 96 Ms Pender, for BND and BNP, repeatedly referred to AMT's "history of violence". There is no other evidence of any violence, threat of violence or abuse by AMT to any person. Despite much enthusiasm by BND and BNP's lawyers in searching for details of any criminal matters, there is no evidence of any other criminal conviction, charge or complaint involving assault or other violence or abuse by BNP of anyone. 97 AMT is 58. The evidence does not disclose any incident of violence or other abuse in his 58 years other than the incident in 2004. Theoretically it may be said that every male adult carer presents some level of risk (however slight) of abuse of a child. But that is not the test of whether AMT presents a risk to Q's safety (e.g. see Commission for Children and Young People -v- V [2002] NSWSC 949 Per Young CJ in Eq at [41] and [42]). 98 Taken with the other evidence of the circumstances surrounding the particular incident and AMT's history, community involvement, support of AMS and the children in her household, and his attitudes, the risk that AMT would pose to Q or any other child in his household can only be regarded as low. The evidence does not establish that he is a danger to any child. 99 The evidence does not establish that AMT would pose any real risk of abuse of Q if they both live in AMS's household and AMT participates in the care of Q. PROTECTION OF Q FROM RACISM 100 The Tribunal members are aware from Australian media and readings as well as some of the research referred to by Ms O'Neill, that black people in Australia and some other ethnic people commonly experience racist behaviour towards them by other members of the community. More commonly it is conduct of an individual towards another individual but sometimes it is conduct by a group against another group. Examples are discrimination against refugees, some conduct opposing establishment of a mosque or a Muslim school and the Cronulla riots. 101 In the decision of the Full Court of the Family Court of Australia In the matter of B Appellant/Mother and R Respondent/Father and the separate Representative [1995] FamCA 104 (27 September 1995) it was held that evidence of the difficulty faced by Aboriginal children raised in non-Aboriginal environments raised a relevant and potentially important issue in determination of the best interests of the child. 102 The Full Court there referred to extensive research and other literature to make findings of a history of oppression of Aboriginal Australians by other Australians (at paras [25] to [37]) and made the following findings (at para [38]): 38. A. The constant themes from the writings referred to above and from daily aboriginal experience include the following:- In Australia a child whose ancestry is wholly or partly indigenous is treated by the dominant white society as "black", a circumstance which carries with it widely accepted connotations of an inferior social position. Racism still remains a marked aspect of Australian society. Daily references in the media demonstrate this. Aboriginal people are often treated as inferior members of the Australian society and regularly face discriminatory conduct and behaviour as part of their daily life. This is likely to permeate their existence from the time they commence direct exposure to the outside community and continues through experiences such as commencing school, reaching adolescence, forming relationships, and seeking employment and housing. B. The removal of an aboriginal child from his/her environment to a white environment is likely to have a devastating effect upon that child, particularly if it is coupled with a long term upbringing in that environment, and especially if it results in exclusion from contact with his/her family and culture. C. Generally an aboriginal child is better able to cope with that discrimination from within the Aboriginal community because usually that community actively reinforces identity, self-esteem and appropriate responses. Racism is a factor which aboriginal children may confront every day. Because non-aboriginals are largely oblivious of that, they are less able to deal with it or prepare aboriginal children for it. D. Aboriginal children often suffer acutely from an identity crisis in adolescence, especially if brought up in ignorance of or in circumstances which deny or belittle their Aboriginality. This is likely to have a significant impact upon their self-esteem and self-identity into adult life. 103 The Full Court held (at [42]): 42. The first positive public affirmation of the need for a change in approach was the statement of the First National Conference on Adoption in 1976 that:- "Any aboriginal child growing up in Australian society todaywillbe confronted by" racism. His best weapons against entrenched prejudice are pride in his aboriginal identity and cultural heritage, and a strong support from other members of the aboriginal community." 43. It supported an explicit policy of child placement preference in the adoption or other placement of aboriginal children. That is, a policy of preference for placing aboriginal children in aboriginal Households. 104 Although none of the parties placed any evidence before the Tribunal by an expert in relation to racism in Australia against black people who are not Aboriginal, the Tribunal accepts that black people in Australia who are not Aboriginals also experience discrimination and other racist abuse from other Australians. 105 The Tribunal accepts that the best placement for Q in terms of defence from racism would be with a family of black African people. That defence is provided to black African children primarily by adult black Africans who have been subjected to racism and developed strategies to cope with it and who also encourage the children to learn and have pride in their heritage and culture. However, that option of a black African family is not available in either household. Each of the households does not have any black adult Gambian or other black adult. 106 The proposals and actions of each household to facilitate Q learning about and being proud of, his Gambian Culture and heritage will be discussed later. 107 The evidence indicates that the natural father and the natural mother are unlikely to spend any significant time with Q or otherwise assist Q to cope with racism. Clearly if Q lives with his brother and half-sister, that assist and support development of knowledge of, and pride in, his Gambian Heritage and culture. It will not, though, be as assistive and supportive as could be provided from close association with adult black Gambians or other adult black Africans. The proposals of the parties in that regard are discussed later, but it appears that the proposals of BND and BNPwillprovide Q more of such support. 108 Also there is uncertainty as to how long each of L and P will continue to be members of AMS's household. When, or before, each completes year 12 at high school, each may leave Rtown or AMS's home to go to tertiary studies elsewhere or to seek or take up employment, or to live independently. It will be less than 6 years till L turns 18 (Q will be only 8) and less than 10 years till P turns 18 (Q will be only13). There is a significant possibility that before Q reaches adulthood, each of the other black members of the household will have left and be residing separately and at least one of them will not be living in the Rtown Region. 109 (It is noted that all 3 of the Muslim girls from Kosovo who lived with AMS, left upon completion of their Year 12 studies to go to University. B left at the start of 2012, D left at the start of 2011 and their elder sister left prior to 2011.) 110 Support for Q from black people in the community, particularly adult black Africans, is very important for him in coping with racism. The proposals and actions of BNP and BND detailed later are likely to provide Q with more of such support than are those of AMS. Q's NEEDS RE MUSLIM RELIGION AND GAMBIAN CULTURE 111 Q's father and the large majority of Gambian people are Muslim. The Sub Saharan Muslim religion is part of the culture. It is desirable for Q to have some knowledge of Gambian people, Gambian culture and the Muslim religion of most Gambian people to assist his awareness regarding his father and his ancestors on his father's side. This knowledge is a part of his identity and also will assist him to cope with racism. 112 AMS went to Gambia from 1993 until 1996 with Volunteer Services Overseas, working with rural women in developing food security and improving health. It appears that the actual work was mainly to establish gardens and wells. Before commencing work in Gambia she completed a short cultural sensitivity course aimed at providing volunteers with some understanding and respect for the culture of the local people. 113 She was sent to a remote village 9 hours travel from the capital. With community people she and the other volunteers worked digging 14 new wells, establishing and fencing vegetables gardens, and building an outpost for health workers. In the period 1993 - 1996 she and the other volunteers lived in accommodation for them separate to the family compounds that constituted the village. 114 She told Ms Murtagh-Frazer that the villagers live in a culture of extreme poverty and the decision making process is not focussed on the individual, but on the greater good for the community. AMS said that she believed the main tenets of the Muslim faith practiced by the natural father and his family in Gambia were "inclusiveness, community, compassion, humanity, respect elders, family and tradition." She said that they were respectful of their religion but balanced it with their participation in western society. 115 Gambian culture notes by Ebrima Colley are in evidence. She says in that document that: "Despite the gradual erosion of traditional culture through urbanisation, The Gambia's social organisation still retains much of its traditional character, especially at the village level." And: "The basic social unit in the village is the family that lives together in an area called a compound, hence the compound family. It consists of a compound head, his wives, children and other younger males with their wives and children. The head of the compound is the eldest male and is legally responsible for everyone in the compound. He is the chief mediator of all disputes and the first to be consulted on any major event or responsibility involving the family. Every compound family belongs in a clan or ward in the village of related compounds built near one another, forming a small neighbourhood. The head of the clan is also the eldest living male of the related families." 116 AMS did not meet the natural father until 1995. They married in 1996. After the marriage she lived in the family compound of the natural father's family, but only until she returned to Australia later the same year. 117 She said in an Affidavit that he has "Wolof" and "Fulah" tribal heritage. She said the natural father trained as a teacher in Gambia but there is no evidence that he ever worked as a teacher or had any other employment. She said that one of the natural father's brothers was a policeman and another was a teacher. There is no evidence that either of those brothers lived in the village she experienced. 118 She said that the family were westernised in many of their cultural practices, including that despite their Muslim religion they drank alcohol. They did not eat pork. But they did not acknowledge the major Muslim feasts and traditions. They participated in Ramadan and she did also when she was there. 119 While she was in Gambia she did at times attend a mosque and at times fasted during Ramadan. She said she tried to adhere to the accepted practices while being aware of her cultural sensitivity and operating within the community expectations of women within the culture. 120 AMS's opinion is that despite cultural and language differences between her and the villagers, she became part of the community's "tribal and Muslim life". It appears that she is referring to the relatively short period when she lived in the family compound; not the period when she lived in the volunteers' accommodation. She learnt some of the language and was given a traditional name. She has conceded that her knowledge of the language was limited. She says she learnt about the intertwining of the tribal culture and the Muslim religion. 121 After the natural father arrived in Australia in 1997, he and AMS then cohabited in Rtown until he left when she was pregnant with L in early 2001. They were divorced in 2002. 122 When she and the natural father were living together in Australia from 1997 to 2001, she says it was difficult to find any appropriate place to worship because the Sub-Saharan Muslims "are not interchangeable in their belief systems and practices with other Muslims". She said the natural father did not pray 5 times daily, he drank alcohol, he did not adhere to feasts and Ramadan, and he did not attend a mosque. 123 AMS told Ms Murtagh-Frazer, that she has a Koran in her home, "and it is treated with respect and cultural sensitivity." She said that P is aware that he was born into the Muslim faith and has contact with an Indonesian Muslim couple who live locally. She said that P (then 5) had been provided with an introduction to the Muslim faith through those people. She said she would do the same with Q. 124 AMS has at no time practiced as a Muslim, nor does she intend to do so. AMS is not, and has never been, of the Muslim faith. She does not intend to adopt that faith. AMS and AMT have continued to cook and serve pork to the members of the household including L and P. She has continued to do this for more than 2 years since the recommendation of Ms Murtagh-Fraser in her report of January 2011 that the Department obtain from her an undertaking that she will ensure "that Q is not offered or fed food that falls outside the specifications of the Muslim faith, specifically pork and by products". There is no evidence that P has been circumcised. They have not taken or arranged for anyone else to take either child to a mosque. In their home the children have not had readings from the Koran. There is no evidence that AMS or AMT has personally given L or P any introduction to the Muslim religion or will do so. And no evidence that anyone has given L such an introduction. At the time of the hearing L was 12 years and 3 months. 125 AMS undertook the foster care of 3 sisters from Kosovo who she says were practising Muslims. It was reported by Ms Murtagh-Frazer that AMS said in January 2011 that "their cultural practices have been adhered to in the home and as such the rudiments of the Muslim faith are practised on a daily basis. B will be in the home for the next 12 months and both Q and P will continue to be exposed to her Muslim practice during that time." There was no detail of what requirements of the Muslim faith were complied with in the home and it appears that it was the requirement for prayer 5 times per day. On all the evidence it appears that any requirements as to diet, female dress and attending a Mosque were not complied with. 126 In her Affidavit of 5 July 2013, AMS says: "I maintain contact with [the natural father's] family members, friends and colleagues from Gambia residing in country and overseas. [G], Q's uncle, has confirmed support for the natural father's children to live together in our care, in order to maintain the family connection." 127 AMS says she still has contact with the natural father's family and friends, but there is no evidence of any such occasion other than of an email she received from G, supporting Q being placed with AMS and AMT. The natural father has not visited L or P since 2009. (He has not seen Q for more than 2 years.) 128 In her home AMS has regarded "sharing family history" from both the paternal and maternal side of the children's parents as one of the most important roles she has with the children. Her evidence is that she tells family stories as part of everyday conversation and also refers positively to the children about their parents' traits and characteristics. She has also described the natural father's family compound in Gambia and how the children's paternal grandfather "was always surrounded by children and telling them stories". 129 AMS also told Ms Murtagh-Frazer in January 2011 that she intends to take L, P and Q "to Gambia to see Africa and meet their family, and identify with their tribes". She said that at the time the extreme poverty and conditions would be upsetting for the children and first she would take them to an urban area where she has friends and they could meet the family there. She said she believes that as the children become older, they will be "better able to manage the poverty and social mores of Gambia at a tribal level." 130 AMS has not been in Gambia in the last 17 years. 131 In Rtown, through L's School P and L have been attending training in the "Flying Fruit Fly Circus" and there are some other "Anglo-African" children involved in that activity. AMS's evidence is that L and P are also showing outstanding ability at gymnastics in their participation in Flying Fruit Fly Circus. 132 L also has her hair braided by a West African woman, who has 4 daughters and 2 sons in Rtown. L sees those children regularly. 133 In her last Affidavit AMS says: "P and L attend culturally diverse schools with teachers that are aware and supportive". The preschool L and P attended, across the road from us, has given approval for Q to attend. It has excellent support for children with diverse physical and cultural needs." However, there was no evidence as to how the schools are "culturally diverse", and what particular training, experience or expertise the teachers have that would assist them to meet Q's needs, and what support the school would provide for Q in relation to his Gambian cultural needs, including Muslim religion. There is no evidence as to the numbers of staff and pupils that are Muslim and/or African. 134 In her last Affidavit in the proceedings, AMS swore that if Q lives with her, he will "have regular contact with his half-brother M". But her other evidence includes that M's mother (with whom M lives in Rtown) is very hostile to the natural father and M disowns his natural father and Gambian heritage, and sees his half siblings only at Christmas and Easter). 135 In her last Affidavit AMS swore that in Rtown and the adjoining area, there is a population of about 100,000 people and: "There is a vibrant African community in the area. P and L have African born friends at school, Fruit Fly Circus friends, family friends, hair-dresser, as well as there being many culturally diverse festivals here including: Harmony Day, Carnivale, and African community based group activities. There is a mosque in [Rtown]. We also have contact with Gambians in Sydney that I knew in Gambia whilst a volunteer. Discussions regarding appropriate cultural and Islamic teaching have already begun. We have been invited to celebrate the end of Ramadan with the Gambian community this year." 136 The evidence does not establish which, if any, of the "culturally diverse festivals" and community based group activities L and/or P have attended with other people of African extraction. 137 AMS started fostering children on emergency or short term placement in 2006. In 2007 AMS was awarded a NSW Foster Carers Award for culturally and linguistically diverse category. She has provided short term or emergency foster care for a total of 13 children, including P. Five of those children stayed for 14 days or less. The 3 Muslim girls stayed for 55 months, 31 months and 19 months respectively. 138 The 30 children that BND and BNP have fostered include 4 African children. One of the African children they fostered was a one year old boy who stayed 6 months and understood only Swahili, so the family all learnt some basic Swahili so that they could talk with him. 139 At preschool where Q attended for 1 day per week in 2013, one of the teachers was a Muslim. BND takes Q to a parent and child African Children's Playgroup each Thursday afternoon run by Northern Settlement Services which is aimed at helping African refugee and migrant families settle in Australia. Q and BND have learned more about African culture through this group. 140 Two of BND and BNP's sons have very good school friends who are black African and those children come to BND and BNP's home to play, to do homework and for sleep-overs. The parents of those 2 children are black African and have become friends of BND and BNP. The 2 families visit each other's homes. Q quite adores those 2 children. 141 The school at BND and BNP's older children attend and where Q and M attend, has around 20 black children of African background and a number of white children of African background. There are also many children of other different races and cultures. BND and BNP are hopeful that Q and will be able to celebrate Gambian Independence Day in a similar way at school, as at home. 142 BND and BNP have researched Muslim food and where they can buy Halal meat. BND's evidence is that she does not believe they can: "keep an Halal diet", but she does believe they can continue to ensure that Q has a pork free diet in their home which they understand to be important if he is to choose the Muslim religion later. 143 Most weeks BND and BNP have at least one West African inspired meal at home. Q's favourite is the Gambian dish of benachin (literally: one pot), which he prefers to eat the traditional way - with his fingers. The owner of an African grocery shop in Newcastle ("Make it Low African Groceries") has been very helpful in teaching BND about typical West-African foods as have some African friends. They often eat African dishes at the Thursday afternoon playgroup and in homes of African friends. 144 There are also bi-monthly "African Cultural Festivals" held in Newcastle which BND and BNP plan to attend with Q. Those festivals are celebrations of food, music, dance and other entertainment, and many adopted African children and refugee African children attend. 145 There are also special events held regularly by Northern Settlements Services such as markets and school holidays programs geared towards African families. Q recently joined in Harmony Day festivities by performing playing his ukulele and singing an African song with the other children from his afternoon playgroup. 146 In the May school holidays Q participated in a West-African drumming day run by a Senegalese man (Senegal surrounds Gambia and is culturally similar to Gambia). The man is a friend of Q's mother and father. BND's evidence is that Q has shown a natural sense of rhythm since he was very young and she says he may attend a regular African drumming program for children in about 2 years' time. 147 BND and BNP have many children's picture books about Africa, including books about Gambia. Their local library also has a good range of similar books and Q enjoys having stories red to him from such books, and usually has one such reading each day. The family is also adding to their collection of Gambian items that he can explore, such as Gambian currency, photographs, a flag puzzle, musical instruments and artwork. 148 Q has a good sense of rhythm. He enjoys music with the other children in the home and also enjoys listening to African Music. His interest in music has been supported by attendance at a weekly music programme. 149 BND has a friend in the Thursday play group that she and Q attend who is from Vanuatu and assists her with advice about Q's skin and hair care. BND's mother also attended an African cultural day recently with BND, T and Q. There were people there from various different African countries and hot food from the countries was cooked and eaten. 150 BND has taken advice of hygiene practices for Q because of the express concern of Q's father that Q have good hygiene practices. Each day she and Q pay special attention to hair and skin care. BND and BNP have researched on the internet and spoken to several people with similar skin and hair to Q. They have sourced various suitable skin lotions and hair products, some from overseas. They also have an African friend who does cornrows in his hair. Q has commenced assisting with the taking care of his skin and hair and taking pride in it. 151 It is rare for Q to be the only non-white person in social gatherings with BND and BNP because of their multicultural family and the groups that they mix with, including Pacific Islander families, African families, and fostering families with children of various cultural groups. Q has a warm relationship with the children of BND's brother. Their mother is Chinese. 152 The family also sponsors a child in Africa - chosen as she has the same birthday as Q, and they enjoy correspondence with her. 153 BND and BNP arranged for Q to be circumcised in accordance with the wishes of his father, who considered it important for Q with the requirement of his Muslim religion. 154 BND's parents have in the course of their lives and careers lived in England, Fiji (7 months), Brunei (18 months), and for short assignments in the last few years as volunteers in Tonga and Samoa. They have "made good Muslim friends, who are rational and moderate in their views, rather than being fundamentalists." 155 BND's parents express a willingness to help Q learn about Islam, if he chooses to follow Islam as an adult. They have the experience of living in a Muslim country and they are aware of the similarities between Christianity and Islam. They believe that the precepts of each religion about how to live are more important than the difference between the religions. 156 BND's father has discussed Q's spiritual needs and says he understands that the natural father wants Q to be made aware of Islam at an appropriate age. BND's father is Ming to take Q to a mosque as soon as he is old enough to understand the implications. His experience of the Muslim religion includes having worked in Brunei, a Muslim country, and working at a university there where most of his colleagues and students were Muslims. 157 He has maintained contact with some of his former Muslim colleagues and sought advice on: "How to bring a child to Islam", and says he is confident that he would be able to fulfil the natural father's wishes in respect of Q being introduced to Islam. 158 BND has talked with her father about him facilitating Q's attendance at a Muslim mosque when he is about 7, in accordance with the tenets of the religion. She has located mosques in Newcastle, Wallsend and Mayfield. She has spoken to the Imam of the Newcastle mosque and he has agreed to assist Q in his religious education if he goes there. 159 Annexure F to the Affidavit of Shane Reed, sworn 8 February 2013, is a lengthy and detailed e-mail from BND and BNP setting out their proposals in relation to meeting Q's cultural and religious needs and developing/maintaining appropriate relationships with his birth family. They are very extensive proposals. 160 Also, Annexure A to the Affidavit of BND sworn 30 April 2013 is another very detailed and lengthy discussion of their proposals at that time. 161 In line with the move by foster carers to non-government organisations, if they succeed in these proceedings, BND and BNP intend to change to "Northern Settlement Services", a fostering agency associated with the Ethnic Communities Council of Newcastle and the Hunter Region. Their evidence is that Northern Settlement Services caters mainly for African families. It is proposed through this agency that each child will have a "Cultural Plan". They hope that this will assist in raising Q with a strong knowledge of the Gambian way of life. 162 BND and BNP also anticipate caring for more foster children of African background. 163 BNP's evidence is that part of the plan of BND and BNP for Q is that when he is about 12, they will take him to Gambia or, if that is not safe, to a neighbouring African country, so that he can have some firsthand experience of his culture. 164 BND's evidence is: "Our hope for Q is that through the many culturally appropriate activities we undertake on a regular basis, he will grow up with a solid understanding of his father's country of birth - its customs, beliefs and history. As well, we hope he will continue to develop an appreciation for the food, music, language and fables." 165 Sean Fardell is a Specialist Psychologist and "Team Leader, Hunter and C.C. Psychology Services". It appears that this is a section of the "Human Services" of the Department of Community Services. Mr Fardell provided a "Psychologist Consultation Record" from consultations with the Case Workers who had been working with Q on behalf of the Department and also from the Care Plan prepared during the Care Proceedings in the Children's Court, and an up-dated Assessment Report for Authorised Relative and Kinship Carers prepared in respect of the proposals of AMS. 166 In his report of 15 August 2012, at a time when none of the Affidavits in BND and BNP's case had been filed, the psychologist Sean Fardell included the following statement in his report: "The initial Care Plan proposed that Q be transitioned to the care of AMS which conferred a number of advantages including sibling/relative placement and AMS's experience and understanding of Q's cultural and religious heritage. The assessment report on AMS also outlines a number of strengths and capacities of AMS to provide suitable care for Q." 167 But Mr Fardell also acknowledged in that report that the amended Care Plan providing for Q to remain in the long-term care of BND and BNP clearly indicated: "This placement is considered a supportive and caring one in which Q has developed a 'strong attachment' with his carers, but also clearly indicated that the carers were 'willing to recognise and support his cultural and natural family identity needs". 168 In the "Assessment Report for Authorised Relative and Kinship Carer" prepared in January 2011 it was concluded: "AMS is committed to giving Q and P an understanding and exposure to their sub-Saharan Muslin faith." However, it is noted that at the time this hearing concluded, contrary to that faith members of AMS's household were still eating pork and P, at age 7 had not visited a mosque. There was also no evidence of anyone taking responsibility for educating L or P about the basics of the Muslim religion. 169 Ms Alison O'Neill is a Clinical Psychologist. She has a Bachelor of Arts with Honours, and a degree of Master of Psychology (Clinical). She has over 10 years' experience as a Clinical Psychologist treating adults and children and has prepared many reports for Courts and for other uses. Her special area of interest is the impact of substance abuse and mental health on parenting. Prior to working for LSC Psychology, she practised on her own account in Sydney and later at Taree, specialising in children and adult mental health issues. She also has worked with war veterans for the Department of Veterans Affairs and conducted group treatment programs for depression, anxiety, and post-traumatic stress disorder in the veteran population. She has also written courses and trained medico-legal professionals in large corporations regarding mental health in Workers' Compensation issues. 170 She has had casual teaching positions over the last 10 years at the University of Sydney as a Tutor and Casual Lecturer for 2nd and 3rd Year Psychology, and she also wrote tutorial programs and lectured to students completing their Honours and Masters degrees. She has also done work as a research assistant and has helped write and edit journal articles. 171 The solicitors for the Department instructed Ms O'Neill to prepare an Expert Psychological Report in relation to Q and answ a series of questions. In the course of the preparation for the report she read numerous documents in the proceedings, and also conducted interviews of the adults and children of both households. She observed interactions between the adults and the children of each household. 172 Ms O'Neill's first report is dated 10 April 2013. It was written without the benefit of the evidence in the affidavits in BND and BNP's case, including evidence as to how they and the extended family do and will address Q's needs regarding Gambian culture, including the Muslim religion. She concluded that "[AMS] has lived in Gambia and has access to stories and his culture which would not be available with [BND and BNP], no matter how they may try to expose him to cultural activities. He will therefore have a greater chance of positive identification with his African heritage...." 173 In answer to the question as to the most appropriate manner in which Q's cultural needs could be met in the current placement or in the placement with AMS, Ms O'Neill said in the same report: "It seems unlikely that the current placement can meet these needs and it seems highly likely that [AMS's] home environment can." 174 In the same report in response to the question: "What does recent psychological research suggest about the long-term outcomes for children raised in foster care/adoption settings different from their culture of origin?" She replied: "See report for literature review. In short, the literature suggests that there are long-term increase risks of developmental issues, psychological problems, and placement breakdowns for trans-racial/cross-cultural placements." 175 Professor Quadrio was engaged by BND and BNP as an expert witness. She prepared a "shadow report" on the report of Ms O'Neill. For the purposes of her report, Professor Quadrio accepted the observations and other facts relied upon by Ms O'Neill. She also had the benefit of reading all the affidavits including the affidavits detailing the actions and proposals of BND and BNP in relation to addressing Q's needs regarding Gambian culture, including Sub-Saharan Muslim religion. She was asked to give her own opinions on various issues. Her report is dated 19 July 2013. 176 Professor Quadrio has the following qualifications: Bachelor of Medicine Bachelor of Surgery at University of WA, 1966; Diploma in Psychological Medicine (with Distinction), University of Otago, NZ, 1970; Member of the Royal Australian & New Zealand College of Psychiatrists, Faculty of Child & Adolescent Psychiatry; Fellow of the Royal Australian & New Zealand College of Psychiatrists, 1973; Doctor of Philosophy, University of Sydney, 1998. 177 Professor Quadrio is an Associate Professor at the School of Psychiatry at the University of NSW. She practises in private practice as a Consultant Forensic, Child & Family Psychiatrist. 178 Professor Quadrio has had posts in the public health system, mental health services. She has had teaching appointments with the Australian Institute of Family Therapy, Royal North Shore Hospital Child & Family Unit, Supervisor in Family Therapy, is a Senior Lecturer in Psychiatry with the University of NSW, with the NSW Institute of Psychiatry since 1989, with the NSW Institute of Psychotherapy for 8 years, with the Royal Australian and NZ College of Psychiatrists, Child & Adolescent Training Program for 8 years, and as a psychotherapy lecturer and supervisor. She has also served as a Counsellor and Chaired a sub-committee of the College of Psychiatrists. 179 Professor Quadrio also referred to various cross-cultural studies and discussed those at pages 21 to 26 of her report. She was asked a series of questions and provided answers in her report. The following questions and answers are relevant in relation to the issue of Q's needs in relation to Gambian culture and understanding of the Muslim religion: "4. Would you expect Ms O'Neill to assess the attachment of Q to his siblings, his adoptive siblings and extended family, for example a cousin? There does need to be some consideration of extended family in any assessment like this but here there was a more particular and a very important aspect that would have weighted the assessment significantly: the extended family is multiracial and the maternal grandparents have a particular familiarity with and sympathy for Muslim culture. The concerns that appear to have most influenced Ms O'Neill, those relating to cultural/racial identity, may have been ameliorated by this knowledge. 5. Would you expect Ms O'Neill to have considered the links to his maternal grandparents and paternal grandparents in assessing likely damage or stress to Q in moving him? As above, if the extended family were much involved then this would be an important consideration in any such assessment but again in this case there was a very particular and highly significant aspect of the role of extended family in that they are multiracial and the maternal grandparents have a particular familiarity with and sympathy for Muslim culture. Again, the concerns relating to cultural/racial identity, which appear to have most influenced Ms O'Neill, may have been ameliorated to a significant extent by this knowledge. 10. Would you have expected Ms O'Neill to get evidence of the multiracial nature of Q's foster family? How might you see this affecting his development? It is not clear from her report whether Ms O'Neill was aware that the BND and BNP family is multiracial; if she was aware and did not consider this then that constitutes a significant oversight; if she was not aware then she did not have information that is of critical importance." 180 In answer to the question whether she agrees with Ms O'Neill's conclusions, in particular that it is better for Q to be moved to live with AMS, Professor Quadrio said that although Ms O'Neill's report gave the impression that Q would have very limited opportunity for developing a positive cultural and racial identity if he lived with BND and BNP, the material recently supplied by them and the maternal grandparents suggest that this is not so. She said in her report: "As presented in Ms O'Neill's report the impression is that with [BND and BNP] Q would have very limited opportunity for developing a positive cultural and racial identity, however, the material that has since been supplied ... suggest that this is not the case. Both of [BND's] brothers are in interracial marriages and therefore Q shares with his cousins a mixed race heritage. It is apparent that these parents and grandparents have a considerable degree of cultural competence, including that the grandparents have lived in Muslim countries and have a sound familiarity with the sympathy for that culture. It is apparent also that there is a significant African community in Newcastle and that Q has many opportunities for interacting with other African children and it is clear that [BND] has ensured that this is so. It is apparent from this recent Affidavit material that [BND and BNP] meet the criteria for cultural competence that have been established as critical for effective transracial child placements (Vonk, 2001; Vonk et al, 2008). Thus the dilemma is not quite so stark as portrayed in Ms O'Neill's report. Rather it appears to be a choice between a household which is established as a strong and secure primary attachment base, where the parents are in a long-term marriage and where there is a considerable level of cultural competence and good opportunities for cultural and racial identity development, versus a household where there are no significant established attachment relationships and there is a step-parent but there are better opportunities for cultural and racial identity development. When considering thus, it would appear that the weight of evidence is with Q remaining with [BND and BNP's] family." 181 The finding of the Tribunal is that on all the evidence, contrary to some opinions expressed by witnesses or report writers (some of whom had not been aware of the actions and proposals of BND and BNP in this regard), it has not been established BND & BNP are less likely than AMS to provide for Q's needs to learn about and experience Gambia, Gambian people, and Gambian culture, including the Sub Saharan Muslim faith. KINSHIP, SIBLINGS AND IDENTITY 182 Much of the research into the significance of kinship and living with family members of the same racial and cultural group is based upon studies that considered the outcomes for children who had lived in a family home with such people and were separated from them and then lived elsewhere. It must be borne in mind that Q is not a child who has had that experience. He has never lived with either of his parents or any of his siblings. He has never lived with kin. The consideration under this issue does not involve issues about him having already suffered some loss by being separated from kin. His situation is different from children who have been in the care of Kin and removed and then placed with people from a different racial group. 183 AMS's evidence is that she has a relationship like aunt/niece with the natural mother of Q. That relationship has only arisen through the infrequent contact by the natural mother with P (which has usually been supervised by AMS) and telephone communications between the natural mother and AMS. It appears on the evidence that all of this contact has been very infrequent. 184 When AMS was interviewed in January 2011 by Ms Julianne Murtagh-Fraser she said her relationship with the natural mother was "settled and ongoing" but at times the natural mother is "unsettled and erratic". She said the calls from the natural mother were often "confused and erratic". She also said the natural mother goes through short periods of lucidity when she appears to be intelligent and focussed, but generally she functions in "survival mode" and when she is in a relationship her behaviours are quite sexualised "and (she) is unable to focus on any needs apart from her own".. 185 Q's natural father has seen P and L on only 3 occasions and has not seen either of them since 2009. Q's mother has visited P in Rtown over the 6 years prior to 21 February 2013, on 2-4 occasions per annum and also made monthly telephone calls. However, it appears that she has moved from the Melbourne area to Sydney and there is no evidence that she has visited P since February 2013. In the care of BND and BNP Q had regular contact with both parents when he was an infant. Then the natural mother was visiting Q every 2 months and contact with the natural father had ceased. BND told Ms O'Neil she did not know the reason. She said she would be happy to facilitate ongoing contact by Q with his biological family. There is no evidence to suggest that either of Q's parents will ever live with him or spend significant time with him. 186 M, another child of the natural father, is a half-brother to L, P and Q and lives in the Rtown district. He is the same age as L. He does not identify with the natural father at all. He has not met the natural father and does not know much about him. He recognises the husband of his mother as his father and he is firmly attached to him. He has no ties to African culture. His mother is hostile to the natural father and M has no wish to meet his birth father. AMS is on friendly terms with the mother of M and L and P sometimes spend time with him. M is "Anglo-African". AMS says in her Affidavit of 15 November 2012, that M plays together with L and P "on birthdays and at Christmas". Clearly contact between M and his half siblings is very infrequent and unlikely to provide any close or supportive relationship for Q. Also it is unlikely to be supportive of the African part of Q's identity or support his recognition and pride in his Gambian culture and heritage. 187 In the assessment report for Authorised Relative And Kinship Carers of 24 January 2011, prepared when BND and BNP were not being considered as an option for long term care, it was reported that AMS believes, among other things, that children need: * Acknowledgment of who they are as individuals; * Acknowledgment of their history and what it means to them; * Belief and work to understand and accept the complexity of their background; * Demonstrated empathy on a daily basis; * Acknowledgment of the depth of their past attachments no matter the history; and * Be respectful of birth parents, family and culture and place no judgment on past life experiences for children in care. 188 In his report of August 2012, the psychologist Mr Fardell said that one of the advantages for Q of a change to AMS's care would be, "the development of closer relationships with biological siblings." Clearly, Q's relationships with P and L are likely to last during the joint lifetimes of him and each of the others. That is likely, in this case, to be a longer period than the length of his relationships with his foster carers, whether it is AMS or BND and BNP. 189 There is in evidence the report of the Multicultural Caseworker Cultural Consultation dated 9 August 2012, prepared by Tat Mugadza, a Multicultural Caseworker of the Department. The report does not disclose Ms Mugadza's qualifications or experience and therefore does not establish what expertise, if any, she has in the area. Accordingly there is a problem about how much weight can be given to her opinions. Another problem is that it does not take into account the actions and proposals of BND and BNP evidenced in the affidavits filed later in their case. Of course, it also does not take into account the short and long term emotional and psychological consequences for Q of severing his present attachments. 190 However, the consultation notes prepared jointly by the requesting caseworker and the Multicultural Caseworker includes the following: * * Family attachment more important than CS primary caregiver attachment for African families. It is important that Q maintain his family connection in every way possible. He has a full blood sibling and a half blood sibling. Under the circumstances it's more important that he create a bond with his siblings as compared to maintaining a bond with his 'foreign care givers'. * Children taught to come back to family - more important than other relationships. African families are built on a foundation where family relations are paramount * Family gives a context for religion, culture and tradition - it forms your Identity. Family gives you a sense of belonging. Family defines a person, * AMS appears to have more understanding of the cultural needs than the other foster carers. She has resided in Gambia before. She knows Q's family in Gambia. She knows where to take him to see his family. She was married to Q' father. She is the appropriate carer given she already cares for Q' siblings. * Religion - Christian v Muslim conflict- 90% of Gambians are Muslim - could be a source of conflict for Q later if he has no input from Muslim sources. * Language - access to native language. * Gambian culture -AMS lived with the family, can understand the values etc. * Sibling relationships - P is Q's full blood sibling, Mall half sibling. P came to AMS at age 2, was young enough to form a new attachment - Q would benefit more at a later stage from residing with siblings. It's Important to think of what is best for Q and not his carers. Maintaining Q' attachment with his current carers is a short term solution but we have to consider the long term effects and benefits for Q. His best interest is that he forms an attachment with his siblings now while residing under the same roof. * 5. Agreed actions arising from consultation (to be completed jointly by requesting caseworker and multicultural caseworker at completion of the consultation) * Recommended a transition plan - Q to start family contact with AMS and his siblings. It is recommended that contact takes place regularly so that Q, AMS and his siblings can familiarise themselves with each other. Recommendations are also made for overnight stays for Q before final transition can take place. It is highly recommended that Q be placed in this sibling placement as this is more beneficial for him. CS principles state that it is never our intention to remove children from their families. AMS was assessed and she was recommended as an appropriate carer for Q. Where family is considered appropriate CS should restore the child back with its family - no excuse. 191 In her Affidavit of 13 February 2013, AMS gave evidence as follows:- "33. The visits by the birth parents can be disturbing for both L and P and require great sensitivity. But I believe these visits are also very important for the children's understanding of their sense of self, empathy and life story. 34. Sharing family history from both the paternal and maternal side of the children's parents, is one of my most important roles with the children. Like other families, I tell family stories as part of everyday conversation. As well as referring positively about their parents traits and characteristics. I describe the [natural father's] family compound in Brikama and how their [paternal grandfather] was always surrounded by children and telling them stories. 35. These conversations are critical links to their history, it promotes their self-esteem and reaffirms that this is the home where all the family stories come from, relating to both their mothers and father. I can facilitate this in a healthy and nurturing way. P does not question the reason why he lives with us. He sees his sister, looks like his sister, plays with his sister and we hold and continue his life story. This is what we can offer Q." 192 Ms O'Neill reported from her interview of AMS in March 2013: "40. [AMS] was able to empathise with Q' position and demonstrated sound insight into the situation. She stated that Q is Anglo-African and, if he were placed with her care, with his siblings he would not have to explain his heritage to himself or others. Further, she described herself as 'being a bridge" between Q, his parents and his cultural heritage and she sees P and L as being instrumental to Q' transition into their care. She also acknowledged that Q is currently attached to his carers and will, therefore experience loss and grief if separated from them. However, she described skills and strategies to help Q transition into this care and acknowledge and cope with his feelings of loss. Further, she stated that she would like [BND and BNP] to continue to be a part of Q' family and claimed that she would be respectful and more than willing to facilitate ongoing contact with them, whom she hopes would have a role akin to an aunt and uncle in Q' life. "41. lf Q remains in his current placement, [AMS] believes he will have difficulties throughout his life. She stated that 'it is like cutting off his life story' and that he cannot have then the connection to Gambian cultural siblings or his Muslim religion. She stated that Gambian roots are very important and that overtime, Q is likely to struggle with where he 'fits in' and that he would feel 'alien'. She noted that if L and P continue to visit him, he will have a strange connection and that as he gets older, his 'storyline with shrivel up'. She noted that superficial exposure to African culture is not commensurate with the cultural underpinnings and storytelling she can provide in her home. Further, [AMS] expressed significant concern about [BND and BNP's] expressed desire to raise Q as a Christian. She believes that Q should be raised to understand his Muslim faith and to be able to choose to practice his faith if he so desires. She claimed that this is very important to the natural father and the paternal side of the family." 193 The research relied upon by Ms O'Neill at paragraphs 231 to 233 of her report, addresses the issue of whether kinship placements, placements with siblings and placements with relatives have a lower break-down rate or are more stable. However, there is no reference to any research that addresses the particular circumstances of Q where he has never lived with parents or siblings and the placement with siblings being considered is proposed to occur past age 3and when all his secure attachments are with his foster carers since birth and their 4 children. 194 Ms O'Neill relied upon research in her first report in April 2013 to conclude that Q: "is likely to have some issues with identity formation as he approaches adolescence, given that he will be placed with non- African parents either way. There is no clear indication that this will decrease his self-esteem, although it is likely that a disconnection from African culture within a white Christian family and without his siblings would make the task of adolescence and identity formation more difficult for him. It also seems likely that [BND and BNP] will not be able to empathise or understand Q's feeling of difference. Furthermore, it seems likely that, in later childhood, he will feel a sense of loss regarding his culture (deculturation) and in early adulthood, he would start the task of reculturation to discover his culture, improve his sense of identity, and reconnect with his culture roots." 195 She also said: "246 Another consideration is the increased risk of placement breakdown should Q remain in the current placement or be placed with [AMS and AMT]. It is possible that he will have a greater risk of placement breakdown if he remains in the current placement. However, it is also possible that because he has been in the placement since early infancy, the placement could be successful. It is impossible to predict this with any accuracy. Adoption seems to strengthen the permanency of placement and this may be of benefit to Q. 247 Overall it seems likely that placement with his sibling and [AMS] would minimise the risk of problems for Q in the long term. By living with L and P, who look like him and who share the experience of racial difference and the same father and cultural background, Q will likely have a buffer to reduce the stress and distress in his life." 196 Ms O'Neil relied upon some specific research when she said in paragraph 234 of her report that, "Identity formation is the central task of adolescence", and, "This is harder for children in foster care, who are separated from their parents." She said that the research shows that identity development is: "shaped by the social environment and it is the adolescent's attempt to negotiate systems and to determine how she/he fits in to society. This task is harder for children who are racially and culturally different from their parents, such as trans-racial adoptees or foster children." 197 BND told Ms O'Neill that she recognised that contact once a year would not be sufficient. She said that once Q is 5 years old, she would be agreeable to him spending a week per school holiday with his siblings. In the meantime, she suggested that he spend time with them 4 times a year and said that she would be agreeable to having P and L at her home also for a holiday, if AMS was agreeable to that. 198 BNP told Ms O'Neill that, "Q has always been aware that he has 2 mothers 'a tummy mummy and a psychological family'." He said that the natural father had stopped contact with Q but that he and BND would like Q to have contact with his father in the future. He said that Q currently sees his half-brother E 2 to 4 times a year and he would like Q to have informal contact with E and other siblings in the future. He also said that he, like BND, would like Q to have contact with P and L about 4 to 5 times each year. 199 BNP told Ms O'Neill that in his opinion, "it would have been ideal" for Q to be placed with his siblings early in his life, but that because he is now attached to BNP, BND and their children, Q would "struggle to adjust" and may feel abandoned if he is removed from their care. He questioned why a risk should be taken at this stage. 200 When BND was interviewed by Ms O'Neill, she was asked about potential difficulties in the future if Q did not live with his siblings. Ms O'Neill reported: "[BND] stated that when he is a teenager he might question why his has not lived with them and 'might even want to live with them'. She stated that this would be natural for a teenager, but that she could assist Q with visiting his siblings. She stated that, of course, he will have more fun and games with them, as they have a different role in his life, but that she hopes if Q has contact with them, he will not feel disadvantaged." 201 In her report in answering the question what the most likely problems would be for Q in relation to his identity and culture on a medium to long term basis and particularly when he reaches adolescence, if he remains in a non-African family, she said, referring to fuller description in her report: "In short Q will likely encounter many problems with identity formation and a sense of de-culturalisation and loss should he remain in a non-African family. This will not be the case if he is with siblings and has greater access to culture." 202 In her report of July 2013 Professor Quadrio refuted the proposition that placement with kin reduced the risk of placement breakdown. She reported: "Kinship care: Placement with AMS might be regarded as kinship care so it may be relevant to consider issues related to kinship compared with non-kinship care: Comparing the two kinds of placement, research suggests that there is not a lot of difference in the children; progress and outcomes in terms of placement quality and disruption are reportedly similar, but kin placements may last longer and kin carers may persist with very challenging children (Farmer. 2009); and children in kinship care may have fewer behavioural problems (Rubin et al, 2008), but kinship care did not show a significant association with placement breakdown (Oosterman et aI, 2007). Race and gender are significant factors: in kinship placements children of colour show less problematic behaviour and so did boys; the potential explanations include: more opportunities to stay connected to their own families and communities and to maintain ties with their peers; more visitation and contact with biological parents; and more reinforcement of sense of identity and self-esteem from knowing family history and culture (Keller et al, 2001)." 203 In her third report, which is dated 14 August 2013, Ms O'Neill, in responding to the opinions and recommendations of Professor Quadrio, did not refute or dispute any of the research referred to in the above passage by Dr Quadrio. Ms O'Neill said: "7. I acknowledge now, as I did in my initial report, that it is very difficult to balance the importance of pre-existing attachments with the importance of siblings, culture, religion and a sense of belonging. However, this case is not just about the literature, we are in a real live situation and there are far reaching ramifications for Q, should he miss out on the opportunity to have access to his family of origin and struggle to develop a healthy identity in the long term. We know that a sense of belonging is one of the key drives in human nature and serves as a protective buffer against mental health problems and self-harm. Undoubtedly, Q will feel a sense of belonging with his siblings, who have a shared parentage, shared physical appearance and shared experience." And: "9. Although predicting future outcomes in complex situations such as this are always difficult, on balance, I believe that Q will have a sense of belonging, growing up with his siblings. Conversely, I believe he will not find that sense of belonging in his current placement, and that, as he ages, he will feel a sense of longing for what he has missed and, in all likelihood a sense of resentment that he has been denied this opportunity." 204 In those passages Ms O'Neill offered numerous opinions, but did not refer to any research or texts in support of them. Ms O'Neill gave oral evidence about the identity issues and said that at age 4, Q be more aware of his skin colour difference from white people in the society. Later he may be asking himself, "Who am I?", and "Where do I fit in?" She said that identity formation is a major development in adolescence and adolescents do not have a strong sense of self and can drift into undesirable peer groups. She said that it would be a major disturbance for him in the short and mid-term. 205 She was asked to what extent Q's sense of belonging could be ameliorated by good contact with his siblings. She answered: "It is very hard because of the geographical distance. It would moderate it slightly, but he would not have the benefit of being with his siblings." 206 She volunteered that the relationship of siblings is very different where they are not raised in the same household. She said that being in the same household as a sibling provides additional support. 207 In her principal report Ms O'Neill did not refer to the fact the extended BND and BNP's family is multi-racial. In the instructions for Professor Quadrio's report, she was asked whether she would have expected Ms O'Neill to have covered that aspect in her report. Professor Quadrio's response was: "It is not from her report whether Ms O'Neill was aware that the BND and BNP's family is multi-racial; if she was aware and did not consider this, then that constitutes a significant over-sight; if she was not aware, then she did not have information that is of critical importance." 208 The Tribunal accepts the opinion of Professor Quadrio on these matters. It seems that the fact that the family includes other racial groups besides white people and Q, appears to be less confronting for Q in terms of his identity and a situation where he is the only non-white in the family. Ms O'Neill gave no weight to that aspect. 209 The Tribunal accepts that in terms of his self-identity there are advantages to Q of living with L and P. There also could be some limited advantages in terms of Q coping with racism. However, the Tribunal considers that the opinions of Ms O'Neill in this regard over-state those advantages to Q and very much under-state the advantages to Q of being placed with BND and BNP in terms of his association with black African people outside the family. 210 The Tribunal finds that the matters under this heading slightly favour the proposals of AMS over those of BND and BNP. Q's ATTACHMENTS 211 Because of the very limited time that Q has spent with them, he has no attachments to AMS, AMT or any of the children in their household. The only strong attachments that Q has are to BND, BNP and their 4 children. Of the children, the strongest attachment Q has is with U. 212 The attachments that Q has with BND and BNP are close, positive and secure attachments, especially taking into account the attachment parenting methods of BND and BNP for Q's first 2 years. Q also has attachments with their 4 children that are close, positive and secure. 213 The distance between Rtown and Newcastle is so great that it is more than pone days comfortable drive and the time spent by Q with AMS, AMT, P, or L has been infrequent and very short periods. He has not stayed overnight with them. He has spent no more than 28 hours with any of them. 214 When Mr Fardell wrote his report in August 2012 stage Q's first contact with AMS, BNP, P and L had occurred only 5 days before on 10 August 2012. He had also had some contact with his half-brother E while having contact with his natural mother on 27 July. 215 In the section of the report titled "Suggestions/Recommendations", Mr Fardell stated: "Suggestions / Recommendations The central issue is whether now some 2 years into Q's short life is it viable and in his best interests to disrupt what appears to be a stable, caring and supportive foster care placement and transition him into a kinship placement which offers the possibility of stronger sibling relationships (with the sibling group resident with [AMS] and more visible connection with cultural and religious norms and values of the paternal family. It is my view that the most appropriate time in terms of least detrimental impact on Q to have made this transition was during, or at a minimum at the conclusion of, Children's Court proceedings when he was around, or less than 1 year in age. Whilst he is assumed to have developed a secure and healthy attachment to his foster family, his cognitive development (and ability to remember) was more limited at that point in time and the anticipated grief and trauma of losing your primary attachment relationships would have been attenuated somewhat by this. However, given the likelihood of increasing security and broadening of his attachment relationships (not Just to foster parents but also to his foster siblings and place/community), and the evolving development of Q (memory of events and people) such a disruption is now more significant and carries a greater risk for more profound and longer lasting impact on his psychological development and adjustment. Generally, I would not support such a transition given the apparent stability of the placement and that it reportedly meets Q's current needs quite well. Such a view is consistent with agency policy. However, there is a difficult casework decision that needs to be made with some urgency, that balances the benefits of the proposed placement (notably the development of closer relationships with biological siblings and stronger cultural/religious connections) against the current and existing psychological relationships with his foster siblings/carers, apparent commitment by the BND and BNP family to promote Q cultural heritage, and the Inevitable harm that will be done by disrupting this placement. I cannot provide a definitive opinion as to what is in Q's best interests but I also foresee limited scope in strengthening or clarifying casework decision making through a psychological evaluation. The only possibility is consideration of assessing the attachment relationships between Q and his carers although the available evidence, notably contact reports of separation and reunion clearly lends itself to the likelihood of healthy primary attachment to the BND and BNP carers. If the decision is to move Q into the care of AMS then I would acknowledge that there is the possibility that the risk of harm to Q (through disruption to his primary attachment relationships) may be outweighed over time to the perceived benefits of the proposed placement and that AMS appears to be able to provide a reparative environment. However, such a course of action does carry a real risk of more chronic psychological maladjustment and harm." 216 Ms O'Neil interviewed Q for only a few minutes. He was not upset or tearful about being alone with her in the room. He was re-assured that BND would be back to pick him up in 5 minutes. He had limited vocal skills and was not able to convey much information. She saw him again in Newcastle. The interview was again brief as Q was unable to articulate many of his thoughts. He did refer to: "AMS and AMT ... P and L", and when he was asked if he liked playing with them, said he did, and he recalled playing in the dinosaur section of a park. 217 At page 41 of the report she referred to the Department's change of plan in relation to the long term care of Q to support him remaining with BND and BNP, and said: "The reasons for the change in plan is [sic] less clear, though it seems that FaCS made the decision on an unwillingness to disrupt the attachment to BND and BNP." 218 In her review of documentation, Ms O'Neill reported that various documents and reports prior to the Department ceasing to support AMS's proposals, were supportive of AMS and her proposals. But the serious limitation of those documents is that they were prepared at a time when there was no consideration of the option of Q remaining with BND and BNP for the long term. The actions and proposals of BND and BNP were not compared and they did not have any input into those reports. 219 For example, the "Multicultural Caseworker Cultural Consultation Form" (document 14) was prepared by Hilda Mugadza. The report does not disclose what her cultural background/experience is. It is written by reference to what is described as "African families", "African aspects", and generally does not disclose whether the author has any expertise in relation to Gambian culture. The report is less than 2 pages. It was prepared without any consultation with BND or BNP, and discloses no information as to what proposals BND and BNP have and what they are doing in relation to promoting Gambian culture with Q. 220 The report makes a recommendation in favour of AMS's proposals, but it does so by considering only one aspect of Q's needs and by doing that without considering how BND and BNP might provide for his needs in that area. 221 Ms O'Neill devotes almost 8 pages of her report to her assessment of BND. Only 2 paragraphs of that appear under the heading "Parenting". With BNP, more than 7 pages of the report are devoted to his assessment and only about half a page occurs under the heading "Parenting". 222 Ms O'Neill did not become aware from her assessments and interviews that BND and BNP were adherents to "attachment parenting", at least for the first 2 years of Q's life. 223 Under the heading "Formulation", in paragraph 249, Ms O'Neill stated: "Historically, it seems clear that [AMS] was intended to be Q's carer. It remains unclear why the decision was made in October 2011 to leave Q in the current placement, when restoration to the biological mother was no longer considered viable. At the age of 13 months, Q would have been able to transition to another carer (AMS). Q is within the first phase of the attachment process (0-18 months). My understanding is that Q remaining in the placement with BND and BNP was against the recommendation of the Children's Court Clinician and Q's legal representative. Indeed, it seems that most professionals who have been consulted in this case recommended that AMS be the carer of Q, so that he could be with his siblings and experience cultural identity through them." 224 Ms O'Neill omitted to acknowledge that AMS did not make any application or request to be given foster care of Q around the time of his birth or for about a year after his birth. The Children's Court clinic report referred to by Ms O'Neill was the report of Mr Zavanovic. He did not give any consideration to the option of Q remaining with BND and BNP. It was a report based only on the assessment of AMS and her proposals. Unfortunately, any other reports obtained when the Department was still supporting AMS and her proposals in the Children's Court proceedings, have the same defect. They did not involve any consideration of the option that the Department subsequently considered and the Tribunal now has to consider, being the option of Q remaining for the long term with BND and BNP. 225 In her report Ms O'Neill then says that: "The consultation with the Cultural Case Worker and Departmental Psychologist in August 2012 further indicated that transference of attachment to AMS would have been possible and preferable, on the weight of balance, while acknowledging that short term distress would be anticipated to Q (at 2 years of age). It is therefore, perplexing as to why Q remained in the current placement." 226 However, the Cultural Caseworker did not give any consideration to the proposals of BND and BNP regarding the cultural needs of Q. She considered only the proposals of AMS. In addition, the psychologist's report did not recommend a change in the care arrangement. Mr Fardell said: "I cannot provide a definitive opinion as to what is in Q's best interests." In arriving at that decision in August 2012, he did not have available to him any of the proposals of BND and BNP that have been subsequently evidenced in their Affidavits filed in the proceedings. 227 Ms O'Neill said: "It is my opinion that each decision to leave Q in the placement of BND and BNP was an error in judgment as he would have coped with transition relatively easily at a young age." 228 In her "Formulation", Ms O'Neill said that Q, "would have been able to transition to another carer at age 0-18 months." She said that at age 2, if he had gone to live with AMS, "short term distress would be anticipated for Q", and said that he would, "have coped with transition relatively easily at a young age". 229 She made general references to his attachments in his present home. She said: "Undoubtedly, Q is attached to his current carers and their 4 biological children. Indeed, [BND and BNP's] family is all he has known and he has had limited time with his biological siblings. He will, therefore, feel significant loss and distress in the short term if he is removed from the current placement and this risk cannot be ignored." 230 In answer to the terms of reference given to Ms O'Neill by the solicitors for the Department, at paragraph 260 (page 50 of her report), Ms O'Neill describes the quality of attachment between Q and BNP and BND and their children: "a) The current foster carers There seemed to be a positive and close emotional connection between Q and the current foster carers. It is not possible to define which type of attachment, although there seems no reason that this would not be secure as the parenting competence was high. c) The other children in the placement Q also seemed comfortable and at ease playing with the other children in the current placement. He is likely to feel attached to them, given that he has lived there for 2 years. There was no indication of any problems in their relationships or family dynamics." 231 Ms O'Neil did not consider the significance of Q's relationships with the parents of BND and BNP or with BND's and BNP's siblings and their children. After she recommended that Q be placed in the care of AMS she said: "The short and medium impact on Q will be strong even with an appropriate transition process, although I believe that Q can survive the developmental crisis." 232 She also said: "It should also be noted that Q has not been exposed to trauma or multiple changes of care-givers and so his experience of the transition may not be as traumatic as it could be, had he not have experienced a sense of stability and trust." 233 She later, in answer to a specific question and under the heading of, "An assessment of the effect of the change to the current care arrangements (including any effect of separation) upon Q's development, emotional and functioning in", reported: "a) The Short Term Q is likely to feel a profound sense of shock and loss when separated from the current foster family. He does not have the ability yet to use language and so his grief will manifest behaviourally. He may cry, feel anxious, act out, and have difficulty regulating his emotions. However, if these feelings and behaviours are managed well by AMS, as the primary care-giver, she will be able to help him acknowledge the pain and loss, empathise with his feelings of loss and help him feel secure in their care. She will need to rebuild his trust and sense of security, as well as build the relationship. His siblings will likely help with his emotions and also distract him with play. b) The Medium to Long Term Q will likely feel increasingly more secure and safe as time goes on and he learns that he is able to have his needs met in the placement with AMS and her family. If the transition is done well, with good co-operation between the families, then Q will not feel that these ties have been severed or that he has lost BND and BNP love and support. It is likely that he will transfer his attachment to AMS over time, but that he will bond more quickly with L and P. The siblings would be able to comfort and support Q throughout the transition and act as an emotional bridge. Developmentally there may be some regression in the short to medium term, and Q should not be pushed prematurely into advances such as toilet training or speech, until he feels ready to. In the long term there is no reason that Q would suffer any emotional, developmental or psychological problems from such a change, providing that he is able to develop a strong attachment to AMS and have his needs met. AMS's parenting competence is high and she should, therefore, be able to provide a secure and safe environment so that Q can transfer his attachment to her. Long term psychological difficulties occur where there are multiple changes in care-givers or where children never find safe, secure attachment figures." 234 Ms O'Neill suggested a 3 week transition plan. In the first week AMS, L and P would be in Newcastle for 5 days. For the first 4 days there would be day contact with increasing time. Much of the time should include BND and BNP and their children. One overnight stay would occur on the 5th day in the house, rental or hotel where AMS, L and P are staying. In the second week, AMS, L and P would again travel to Newcastle for 5 days. There would be day contact for the first 2 days with less time with BND and BNP and then overnight contact for the last 2 nights. Week 3, BNP (and 1 or 2 of his family members if they wish) travel to Rtown with Q for 4 days. Q has day contact with AMS, AMT and his siblings for the first 2 days and during this time BNP and the others speak with excitement about where Q will sleep and the activities are lined up to do in Rtown. Q and BNP would then have 2 nights both staying with AMS and her family. 235 Mr O'Neill said in her April report that "any delay in commencing [the transition] will make it more difficult for Q to adjust and any elongation of the process will make it more confusing for Q and difficult for all people involved." 236 Ms O'Neill proposed that both households have assistance and support from FaCS. She recommended that after the transition Q have contact with BNP and BND and their children "3-4 times a year and then reduced to whatever is considered manageable for both families". She also said: "Q may been assistance from a psychologist or play therapist to help with the transition. [AMS] would be best able to make such decisions but funding should be made available by the department should this be needed." 237 In cross-examination on 19 August 2013, Ms O'Neill conceded that she had said in her report that she did not know why the Department had changed its mind about the long-term placement. She said that she did not have any documents about why the change of mind occurred. She said she had "no understanding of what had changed". 238 She was shown an Amended Care Plan (document 6), which was prepared in September 2011 and then submitted to the Children's Court on 5 October 2011 when the Department proposed that Q reside with BND and BNP until he turns 18. She said she did not recall seeing the document and she did not believe that the Department had provided her with a copy. Subsequently she conceded that she had received it. The document was part of the Section 58 bundle provided by the Department to the Tribunal and in paragraph 5 of her report, Ms O'Neill acknowledged receiving those documents. 239 In further cross-examination, her attention was drawn to the Affidavit of AMS, which she had read, which had 3 letters annexed from the Department of Community Services explaining why the Department in changing its proposals had "put attachment first". 240 She also conceded in cross-examination that when she prepared her report she knew that the Department had written to AMS and informed her that it had changed its mind because of the attachments of Q to BND and BNP and their children. 241 She conceded that AMS had told her that she did not understand why the Department had changed its mind. She also eventually conceded that it was possible that AMS did know why the Department had changed its mind. But when she was asked whether she accepted AMS had told her about not being informed, her response was: "I do in the report and then I then evaluate". 242 Ms O'Neill erroneously accepted that the Department failed to disclose to AMS why the Department decided to withdraw its support for AMS's proposal and instead proposed to the Children's Court that BND and BNP be the long-term carers. Ms O'Neill reported that the documents provided to her did not disclose why the Department had decided to withdraw its support for AMS's proposal. Both these propositions are wrong. 243 Ms O'Neill incorrectly read Mr Fardell's report as supporting placement with AMS and said that in her report. 244 Ms O'Neill said she was not aware of any obligation of an expert in court proceedings to attempt to resolve differences with any other expert. She conceded that she had not tried to resolve her differences of opinion with Professor Quadrio. 245 When she was asked about her not referring to the practice of "attachment parenting" followed by BND and BNP, she said: "We didn't discuss that in the assessment." And I asked them specific questions but it did not come up that they called that 'attachment parenting'". 246 She seemed to suggest that she had by her questions become aware that they practised 'attachment parenting' with Q. But in her report she did not disclose that, either by the term "attachment parenting" or by description of what they did. The Tribunal is comfortably satisfied that when she wrote her report she did not know that they had adopted such a practice. 247 Ms O'Neill was asked about her knowledge of attachment parenting and she conceded that possibly Q has been accustomed to that. It was clear that the attachment parenting of Q was not taken into account when she prepared her report and reached the conclusions and recommendations in it for Q to be moved to the long-term care of AMS and as to how the transition would be implemented. 248 Ms O'Neill conceded that she did not consider the relationships of Q with the extended family of BND and BNP. She said that was because she was not asked to. When asked whether she assessed the strength of the sibling bonds, she said: "I did that through observation". When asked if she assessed the relationships between Q and the 4 natural children of BND and BNP she said: "Well I asked about the siblings, I asked about, and I spoke to each sibling and I observed the siblings with Q together." When it was put to her that BND and BNP had testified that their children (including Q) had close relationships too, she responded: "I'd expect that." 249 Ms O'Neill conceded in cross-examination that she had not referred to Bowlby and his research in relation to attachments. She conceded that his research on attachment "is essential to the issues in the case". 250 She said that her report was guided by the literature, even if she did not refer to it. She said that she read all the literature listed in her report and it took her a day and a half to read it. It transpired, though, the literature review was prepared by Dr Lennings, a Principal Psychologist in the practice and was used by other members of the practice and possibly up-dated by others. She conceded that she had not cited Dr Lennings as the source of the literature review or attributed it to him. She said: "I wrote the report using what I knew on attachment literature." She also said of Dr Quadrio: "I found a lot of her literature supported what I had found." 251 Ms O'Neill conceded in cross examination that the total contact by Q with AMS and members of her household in his life had been about 28 hours. 252 In cross-examination, she said she was unaware that P had only seen his natural mother 3 times in 3 years. She acknowledged that P is 7, and that in AMS's care he had not been taken to the mosque at all. She also acknowledged that as far as she is aware, L has never been taken to a mosque. She also conceded that AMS has not agreed to keep the home pork free. She conceded that one of the grandfathers of BND and BNP's children had agreed to take Q to the mosque when he is of age, and that AMS has no proposal to take Q to a mosque. 253 She conceded in cross examination that if Q goes to live in AMS's household, he will be in day care 3 days per week after any period when AMS is not working in order to effect the transition. 254 In cross-examination the attention of Ms O'Neill was drawn to Professor Quadrio's proposition that AMS might not be able to bond with Q. She expressed the view that it was wrong and said: "She did not see [AMS] and the child interact." But her attention was then drawn to the fact that AMS in her affidavit of 15 November 2012, said it took 2 years for a "solid" attachment" for P to develop with her. When it was put to Ms O'Neill that it might take 2 years for Q, she responded: "It depends what 'solid attachment' says." AMS told Ms Murtagh-Frazer that when P came to her care at 2, he was "a detached child", "never in a calm state" and "unable to calm or self sooth". She said it took 2 years after P came to her to implement behaviour management strategies to control P's behaviour. It appears that he was quite disturbed for those 2 years. 255 In her recommendations in her report of April 2013, Ms O'Neill recommended that AMS should take 9 or 10 weeks off work to help Q "transition". She proposed that the transition commence in the April 2013 school holidays and be completed over 3 weeks. She said: "Any delay in commencing this will make it more difficult for Q to adjust and any elongation of the process will make it more confusing for Q and difficult for all the people involved." 256 The Hearing did not commence until 25 July 2013, and was not completed until 1 November 2013, more than 6 months after Ms O'Neill's recommended date for the transition to commence. Ms O'Neill produced 2 further reports: one of 24 July 2013 and one of 14 August 2013. The first addressed criticisms of her initial report raised by BND and BNP. The second responded to Dr Quadrio's report. 257 In neither of those reports did Ms O'Neill refer to the question of the adverse consequences for Q of the transition being delayed 3 months, and then another 4 months. Indeed, she continued to adhere to her recommendation throughout, even in her cross-examination on 31 October, nearly 7 months after the time she recommended the transition should occur. She made no reference to the adverse consequences for Q of that delay that she had not anticipated in her report. She did not make a fresh assessment of how well he would cope at 3 years and 3 months of age with a 3 week transition severing all his attachments that had commenced from 5 days after his birth and grown in the period since. 258 Ms O'Neill's report is dated 10 April 2013. The first Affidavits in the case of BND and BNP were not sworn until 30 April 2013. There were in all 6 Affidavits filed in their case. Ms O'Neill did not have any of those Affidavits when she prepared her report. Ms O'Neill did not sufficiently inform herself of the actions and proposals of BND and BNP and their extended family regarding Q learning about Gambian culture and the Muslim religion and about Q associating with African adults and children. She did not have sufficient information to compare the 2 households on these aspects. 259 On the whole the evidence did not support her finding in her report of 12 April 2013 that: "To their credit BND and BNP have attempted to expose Q to some African culture, although it should be noted that the exposure to culture and religion will become more important as Q ages and it is apparent that BND and BNP have limited understanding about this and will have difficulty meeting these needs." 260 In her report of 24 July 2013, Ms O'Neill then acknowledged that she had not read Affidavits of BND and BNP and Mr and Mrs W until about 24 July 2013. However, she dismissed the extensive proposals of BND and BNP with the following paragraph: "I understand that the BND and BNP family have made considerable attempts to expose Q to African culture and I believe I commented on this in the report. However, it remains my opinion that Q's cultural needs will be best met with AMS and 2 of his siblings. It seems more likely that placement with AMS will be able to provide a more authentic experience of culture and that the presence of siblings will buffer the problems Q will have in the future." 261 The Tribunal does not accept that response to the extensive material regarding the proposals of BND and BNP and their extended family to be an adequate explanation for not abandoning or qualifying her view that the proposals of AMS in regard to those matters were far superior. 262 Various comments from Ms O'Neill in her report and also in cross-examination on 19 August 2013, indicated that she did not have sufficient knowledge of the proposals of BND and BNP and their extended family in this area to make a comparison with the proposals of AMS and AMT. 263 Ms O'Neill gave evidence on 19 August 2013 and adhered to her previous opinions. 264 In cross-examination Ms O'Neill that there are also risks for Q for the longer-term from his attachments being severed by him being moved from the household of BND and BNP. She said she had "weighed them up", and also the risk of his identity and other issues if he was not moved to live with his siblings. In answer to a question from one of the panel members as to how more difficult it would be for Q now to move houses, she said: "The older the child is, the more difficult. The sooner the better. Ideally he should start in a holiday period - so AMS could be in Newcastle." 265 In answer to another question from the Panel, she conceded that the loss of the attachments that Q has with the 4 natural children of BND and BNP would be more significant in the short term than any support Q would have from P and L. 266 Ms O'Neill was recalled again after her third report for further oral evidence-in-chief and cross-examination. But those matters did not concern the attachment issue. 267 The earlier opinions of the psychologist, Mr Fardell regarding Q's existing attachments and the risks to him if they are severed are more consistent with those of Professor Quadrio than with those of Ms O'Neill. 268 Mr Fardell, acknowledged the severing of attachments would be a serious problem for Q. Although he did not opine whether it would be best for Q to move to AMS's care, he said that if there were to be a transition it would need AMS to move to BND and BNP's area for 4 weeks full time to facilitate the transition. At that time Q was 25 months of age. Professor Quadrio in cross examination also said that if there is to be a change 3 weeks is not sufficient for the transition. 269 It is clear from the evidence that at Q's age of about 33 months when Ms O'Neill in her first report recommended the move or the age of more than 39 months when the hearing ended, the transition was likely to be much more difficult for Q, but Ms O'Neill's recommendation throughout was for only a 3 week transition and in that period: * Contact with AMS and members of her family would occur on only 5 days of each of the first 2 weeks and 4 days in the last week; * Overnight contact would occur only in the last day of the first week and the last 2 days of each of the second and third week; and * In the first 2 weeks the contact would be in Newcastle and in the last week in Rtown. 270 The Tribunal considers that such a recommendation reinforces the conclusion that Ms O'Neil did not adequately recognise the adverse consequences in the short term for Q of a move to AMS's care resulting from severing all his significant attachments. 271 Ms O'Neill relied upon other reports supporting AMS's application that had been prepared when BND and BNP were not seeking long-term placement of Q and that considered only AMS's proposals. Ms O'Neill did not recognise this deficiency in those reports. 272 Ms O'Neill did not give serious consideration to the relevant research and other literature in relation to attachments of small children and the consequences of severing attachments, particularly secure attachments and other positive attachments. 273 Professor Quadrio disagreed with Ms O'Neill's opinion as to the medium to long term effects on Q if he now moves into the care of AMS. She said in her report: "... there is a considerable literature showing that children are affected by significant disruptions to primary attachment relationships". 274 In relation to the Court Clinician's concerns about moving Q to AMS, Professor Quadrio said: "This is a very significant and one of two critical issues: The core dilemma here is that of balancing the attachment issues against the possible advantages - chiefly cultural/racial identity - involved in the proposed placement with siblings; so there needed to be careful analysis of the harm that might follow disrupted attachment. There is an extensive literature on this issue that is considered later in the theoretical considerations." 275 She expressed the opinion that she would have expected Ms O'Neill to have dealt with more detail with the question of disruption of attachment: "... since in my view the critical issue here is balancing the harm that is likely to follow such disruption against the advantages - chiefly related to cultural/racial identity - that may accrue from the proposed placement with siblings." 276 In relation to questions of extended family, she said: "There does need to be some consideration of extended family in any assessment like this, but there was a more particular and very important aspect which would have weighted the assessment significantly: the extended family is multi-racial and the maternal grandparents have a particular familiarity with and sympathy for Muslim culture. The concerns that appear to have most influenced Ms O'Neill, those relating to cultural/racial identity, may have been ameliorated by this knowledge." 277 In answer to a question about whether she might have expected Ms O'Neill to have considered the links to grandparents to the household of BND and BNP, she said: "As above, if the extended family were much involved then this would be an important consideration in any such assessment, but again, in this case, there was a very particular and highly significant aspect of the role of the extended family in that they are multi-racial and the maternal grandparents have a particular familiarity with and sympathy for Muslim culture. Again the concerns relating to cultural/racial identity, which appear to have most influenced Ms O'Neill, may have been ameliorated to a significant extent by this knowledge." 278 In answer to the question whether she would have expected Ms O'Neill to consider the effect of taking Q away from friends at playgroup and community in Newcastle, she answered: "In my opinion the family context is the most critical environment for a child of this age and other social networks are less critical so ordinarily I would not rate separation from social networks as highly relevant in the overall assessment of the risks involved in a change of placement. In this case, a consideration of the network is significant from another perspective, not because of the risk of harm from separation from the network, but because it includes other African families and children and again this may have ameliorated some of the concerns that appear to have weighted Ms O'Neill's recommendation for a change of placement." 279 In answer to another question, she said: "It is not clear from her report whether Ms O'Neill was aware that [BND and BNP's] family is multi-racial; if she was aware and did not consider this, then that constitutes a significant over-sight; if she was not aware, then she did not have information that is of critical importance." 280 When asked to indicate any other significant absences in Ms O'Neill's report, she listed various matters, including the existing attachment relationship. She said: "[BNP] states that Q has spent about 22 hours in total with [AMS] and P and L. This is an extremely small amount of time and if it is in fact the total [AMS] has had contact with Q over 3 years, then it is not a sufficient basis for an attachment relationship and certainly not a secure basis for the child. This compares with Q having spent all of his life so far with the [BNP and BND's] family and with virtually no separation at all during the first 2 years so that there is an established secure attachment base with strong attachment to [BNP and BND] and the siblings: to removing him from these well-established attachment relationship and his secure base is likely to cause him considerable trauma and may have long term effects on his mental health (Bowlby, 1969, 1979)." 281 Professor Quadrio in her report said it is significant that Ms O'Neill did not include: "Theoretical material in regard to attachment theory." She said: "Yes, a consideration of attachment relationships is fundamental in any change of placement decisions (Robuson, 2006), therefore more consideration of attachment theory was relevant. In this case there are two major competing issues: the strong attachment that Q has developed to his foster parents and to the immediate and [BND and BNP's] extended family and the critical importance to his development of ensuring attachment security, versus: his need for acquiring a positive sense of cultural and racial identity, which might better be served in [AMS's] household. Therefore, there was a need for Ms O'Neill to examine these issues in the light of relevant research. Some of the more important material in terms of attachment is provided below, material relevant to the racial/ethnic identity issues follow later. With respect to inter-country adoptions in particular, attachment theory is said to be 'the most relevant' for child welfare practice (Robuson, 2006). Thus, the attachment literature is highly applicable to the situation of Q." 282 Professor Quadrio set out a summary of the main attachment literature and discussed some of the limitations in applying that research to Q. She then gave a summary of some of the relevant "cross-cultural" studies. She then dealt with the research in relation to "Foster care and attachment". She reported: "There are 'compelling data' that placement stability and permanency are 'critical' and there is a strong association between frequent placement moves and poor outcomes (Barth et al 2000; Jonson-Reid et al 2000; Newton et al 2000; Pecora et al 2005; Taussig 2001); for foster children who fail to achieve placement stability, 36%-63% are at increased risk of behavioural problems (Rubin et al, 2007); for pre-school age children particularly there are multiple risks for poor long-term outcomes which increase with the number of placement changes experienced (Fisher et al 2005). Best outcomes are for early adopted children with no adverse early (pre-adoption) experiences; children adopted as babies show less behavioural, psychiatric and anxiety problems during adolescence (Howe, 1997). Citing James (2000), Rubin et al refer to administrative decision-making, agency or adjudicated decisions, which may be unrelated to the behaviour of the child or the child's attachment within a foster home and emphasise a need to apply best practice to administrative decision-making and consider alternatives to placement change or strategies to prevent them (Rubin et al (2007)). Similarly, Harden (2004) refers to the bolstering of resilience where children find stability and emphasises a need for policy and practice to promote family stability." 283 Professor Quadrio said that she does not agree with Ms O'Neill's assessment that removal of Q to AMS's care would cause only short-term damage. She said: "I do not agree. There are significant risks in disrupting the primary attachment relationship of a child of 3 years. There is an extensive literature available, much of which has already been noted, and the consensus of expert opinion is that early relationships are of critical significance in child development and that securing secure attachment is fundamental to sound development (Bretherton, 1995; Carlson & Sroufe, 1995; Cassidy & Shaver, 1999; Fonagy, 2001). More specifically, with respect to foster children, researchers demonstrated a strong association between frequent placement moves and poor outcomes (Barth et al, 2000; Jonson-Reed et al, 2000; Newton et al, 2000; Pecora et al, 2005; Taussig, 2001); in particular foster children of pre-school age face multiple risks for poor long-term outcomes with increase with the number of placement changes (Fisher et al, 2005). There are 'compelling data' that placement stability and permanency is 'critical' and that there is a need to apply best practice to administrative decision-making and consider alternatives to placement change or strategies that prevent them (Rubin et al 2007). There are concerns that administrative decision-making, including agency or adjudicated decisions, make not take sufficient account of child's attachment within a foster home (James 2004) and that policy and practice need to be informed by attachment theory to promote family stability (Harden, 2004)." 284 In answer to the question whether she agrees with Ms O'Neill's opinion that if Q had been removed at the time of the Children's Court proceedings in October 2011, it would not have damaged him, Professor Quadrio replied: "No, as noted above ... in my opinion there would have been risk of psychological harm at that time; Q was then 15 months old and a change of placement would have meant significant attachment loss; however, I would agree that at that time there would have been a stronger case for balancing the potential harm of such a move against the benefits and risks of placement with a natural sibling and a half sibling in what may have been a more culturally appropriate context." 285 In discussing studies on trans-racial or inter-country placements, Professor Quadrio said that in the USA the early literature suggested that matching race was critical in child placements, that African-American children needed this in order to be socialised into the group, and in order to survive life in a racist society. But she said that later there has been research that indicates that although placements with black families remain desirable, they are not quite so critical, that some African-American children had not been psychologically harmed by placements with white families, and that carers can be assisted to understand and meet the special needs of trans-racial foster children. 286 She referred to a similar view by the North American Council on Adoptable Children ("NACAC"), which does not exclude multi-ethnic adoption, but is of the view that placement of children with a family of like ethnic background provides them with strengths that counter the ill-effects of racism (Gilles et al, 1991). In her report she says that: "Trans-racial adoptees placed in white families are said to identify quickly with white culture and 'rarely' maintain birth cultural ties, despite heritage trips and relocations, but they may eventually seek to reclaim their birth culture (Baden et al, 2012)." 287 She referred also to extensive other studies in relation to trans-racial and inter-country placements. She also relied upon various research in relation to kinship care. 288 Professor Quadrio's conclusion was: "The attachment literature is extensive and is trans-cultural; there is a consensus among experts that a secure attachment relationship is critical for mental and physical health and adjustment in the short and the long-term. The literature on foster and adoption placements is also extensive and again there is a consensus that security and stability are primary considerations. With respect to trans-racial or inter-country placements of children, the literature is still emerging, especially with regard to African children raised in Australian families, and there is not so clear a consensus; perhaps the dominant view is that the consolidation of a positive sense of racial and ethnic identity is more assured where same race placement is possible, but that trans-racial placements are also successful, provided that the care-givers are sensitive to the issues and that the child has opportunities for positive links with his birth culture. On balance it is my view that with respect to Q, the attachment needs outweigh the racial/ethnic issues." 289 Professor Quadrio was cross-examined. Much of the cross-examination did not relate to the attachment issue. She said that there is one concern about Q moving to another household, and that is the "inevitable disruption of the relationship with the principal carer". She said that this can cause long and short term problems, sometimes a major loss in the early years can have catastrophic consequences. She said: "You can't bank on a good relationship with the next carer over-coming that". She acknowledged that some carers have skills as a reparative parent, but she said: "There are other factors - there's no way of predicting. Some children can sail through and some can be shattered." 290 She said in her evidence that the problems that Q might face if he is removed from "BND and BNP" are "problems forming close relationships in the future". She said that if early attachments are disrupted, there is the potential for later problems with relationships. She said: "Early attachments are the individual building blocks of personality." Professor Quadrio expressed the opinion that 3 weeks would not be an adequate period for any transition. She said it is limited by the capacity of the adults and the geography. She said that the geography would also create problems for the longer term contact by Q with BND, BNP and their natural children. 291 Professor Quadrio in oral evidence said that Q is not just attached to BND, but also to BNP and to each of their 4 children. She said that the effect of Q leaving the household would be significant because he would have the loss of his primary attachment figures and his attachments to all 4 of the children. She said that they are all important attachment figures, and also the grandparents. She said: "They're all going to be losses, like a plant with a lot of roots. If you chop off a root then harm is done to the plant." 292 Professor Quadrio's opinion is that the chance of Q being harmed by a change of residence is "fairly high". She said it would be an ideal outcome if he had an extended family that included the members of both households. But said she does not know whether the adults involved could form that type of relationship. 293 The Tribunal does not accept Ms O'Neill's opinions regarding attachments of Q and also regarding the risk of very serious adverse consequences for Q if at his present age he is moved to AMS's care. The Tribunal prefers the opinions of professor Quadrio wherever they conflict with those of Ms O'Neill. There are numerous reasons for this, some of which follow. 294 There were some significant factors which Ms O'Neill did not consider, or gave inadequate regard to, in forming her conclusions/recommendations. One of those is BND and BNP's attachment parenting of Q, particularly in the first 2 years of Q's life. Another is the involvement of BND and BNP's natural children and extended family and their relationships with Q. Another is AMS's statement that it took 2 years for her to develop a "solid attachment" with P. Another is the fact that AMS will resume working 3 days per week from 9 or 10 weeks after the transition, and Q will be at day care or preschool, whereas BND has not undertaken paid work since Q came to her care and proposes to continue that arrangement. Another area is the proposals of BND and BNP and their extended family regarding educating Q in Muslim religion and Gambian culture. Another area is their proposals and actions involving Q spending time with black African people, the family abstaining from pork, and the family cooking and eating Gambian food. Another is the proposal for Q to be taken for visits to a Mosque from when he turns 7. Another was the fact that Q had spent a total of about only 28 hours with AMS and had never been in her care overnight. 295 Professor Quadrio's training, qualifications and experience are superior in the area of consequences of disturbing secure attachments of a child and the level of the risks. Professor Quadrio's knowledge of attachments, research and other related research is superior to that of Ms O'Neill. Professor Quadrio gave more convincing reasons in her opinions and conclusions. 296 Ms O'Neill appeared to rigidly adhere to her opinion of April 2013 that there should be a change. She was overly defensive of that and unwilling to make proper concessions. For example, she said the safest time for a change of household was in the first 18 months of life and in her report of April 2013, she acknowledge Q, upon the transition would in the short term experience, "a profound sense of shock and loss" and the transition should commence in April 2013 and be completed in 3 weeks. She acknowledged that any delay would make it more difficult for Q. But even when the transition was not going to commence before November, Ms O'Neill did not in her oral evidence or subsequent reports qualify her April report to acknowledge or describe the likely worsening impact of the change for Q because of the delay since her April report. 297 Ms O'Neill did not give consideration to the other supportive relationships Q has with BND and "BNP's" parents, siblings, nieces and nephews, and with children and adults involved in his pre-school, African community and other community groups and family friends. 298 Similarly, Ms O'Neill was quite defensive when she said in her report: "I was not aware that the biological mother, the natural mother, supported Q remaining with BND and BNP, and this seems somewhat odd to me, given that she self-placed P with AMS. Given that the natural mother is living in Sydney, there seems no reason that she could not have regular visits with both Q and P in Rtown. The weight the natural mother's wishes are given is also questionable, given her apparent mental health and parenting issues." 299 It would seem that Ms O'Neill disregarded the fact that the children of the natural mother were all taken into care because of her inability to care for them and the reasons. The Tribunal takes note of the considerable distance between Sydney and Rtown, and the difficulty that someone with an addiction, a mental illness, or impecuniosity would experience in arranging and implementing travel from Sydney to Rtown return and also arranging overnight accommodation in Rtown. The evidence is that all 3 of the children of the natural mother have been placed in the care of the Minister or another parent. The evidence is that the mother has "mental health issues" and that she and the father demonstrated: "neglect of the children's basic care and lack of insight into the development needs of the children", And: "Prior to Q being born, Case Workers attempted to address these concerns with the natural mother and the natural father with no success, thus the decision was made to assume care of Q on his birth." 300 When the Section 82 report was prepared in July 2010, it was reported: "Access visits occur regularly between Q's mother the natural mother and Q. Visits have been scheduled monthly and the natural mother has been appropriate and has interacted well with Q, being affectionate and playing with him and engaging well with him during the visit." 301 There was no evidence in the proceedings that there was any doubt that the incapacity of the mother to care for Q and his needs has continued or that her mental health problems have not been resolved. 302 In the decision of the Children's Court of 5 October 2011, the Magistrate, Mr Bruce Williams found the natural mother had a childhood history "of extreme deprivation and abuse". He referred to her displaying: "A disturbed personality that resulted in social instability through her late teens and early twenties. She drifted through relationships and was abused and exploited by groups of men." 303 There was also reference to her history being suggestive of "borderline personality traits". A child psychologist, Mr Tarren-Sweeney, was quoted as saying: "... There have been periods in her life when her instability (including self-harm, self-hate, impulsivity, promiscuity, violence, uncontrolled anger etc) was consistent with a borderline personality disorder. Such a condition is enduring in that it does not come and go like some mood disorders do." 304 When Mr Zivanovic, Consultant Psychologist, wrote his report for the Children's Court on 12 January 2011, he reported as part of his psychological assessment of the natural mother that she grew up in a Children of God religious commune in Victoria. Her father had 9 wives and 63 children. She was the eldest of 8 children of her mother. She experienced a traumatic childhood and adolescent upbringing and experienced severe neglect, physical/emotional abuse by commune members, and sexual abuse by her father and an older half-brother. She complained that her childhood and adolescence had been marred by being separated from her mother from birth, not knowing her mother until she was 8, being denied privacy and having to live in crowded premises, being neglected, "treated like dogs", being denied adequate food, starved of love and affection, and physically and sexually abused. 305 She said that she had no respect for her father or her mother. She did not attend primary school and completed 3 years of correspondence education and then Years 7 and 8 at Oberon and year 9 at Byron Bay and Mullumbimby High Schools. 306 She completed her Higher School Certificate at Morisset High School and Toronto High School. At the time of the report she had had only 6 months work at a chicken store at Toronto and no other part-time/full-time employment in the previous 15 years. She was unemployed and receiving a Centrelink New Start allowance of $476.00 per fortnight and sharing a 2 bedroom unit. She also recalled a history of physical, emotional and sexual abuse from boyfriends throughout her late teenage and adult years. 307 The report writer considered that on his assessment that she had "strong features of a Borderline Personality Disorder". He said: "Her unstable personality is reflected in past reported history of self-harm, self-hate, impulsivity, promiscuity, violence and uncontrolled anger. She has limited adaptive coping strategies, has poor personal boundaries and is vulnerable to further abuse and exploitation in her relationships with men." 308 Contrary to the opinion of Ms O'Neill, the Tribunal finds on the evidence that if Q lives in Rtown, because of the distance from Sydney and her financial and other limitations, it is unlikely that his natural mother will be able to have any contact with him there. Ms O'Neill's opinion to the contrary is not consistent with the facts. If Q lives in the Newcastle area, the natural mother would be able to have return travel by train in a single day to visit Q. But given her past conduct, she is likely to visit him only occasionally; probably not more than 4 times per annum. 309 The Tribunal accepts that if Q is moved to AMS's care the severance of all his existing attachments will be a devastating loss for him beyond the short term and there is a fairly high risk that for the long term it will prevent him forming and maintaining secure and trusting relationships. CONCLUSIONS 310 On all the evidence the Tribunal determined that Q's safety, welfare and well-being are best promoted if he is in the care of BND and BNP until he turns 18 and the reasons are: 304.1 Although AMS and AMT have known each other 15 years, at the time of the hearing concluding they had not married and had lived together for only about 11 months. They have no children of their relationship. On the other hand, BND and BNP have been married for more than 14 years, they have 4 children of their relationship and they have survived BNP's serious illness and the surgery to overcome that. 304.2 AMS's proposal is that after a transition period and a period of long leave of about 10 weeks, she would resume working 3 days per week and Q would be cared for in child care. On the other hand, since Q was placed in the care of BND and BNP, BND has not undertaken paid work, but occupied herself as a full time homemaker and parent. She proposes to continue that role. That will provide more support for Q. 304.3 AMS and AMT are from an earlier generation to BND and BNP. AMS is 53 and AMT is 58. BND is 38 and BNP is 39. When Q turns 16, BND will be 50 and BNP will be 51, but AMS will be 66 and AMT will be 71. It is likely that BND and BNP will be fitter and physically better able to cope with parenting Q in his teenage years. 304.4 BND and BNP, on the evidence, are closer to their extended families and likely to have better support from an extended family than are AMS and AMT. Q will benefit from that and also from direct support of him by the extended family. 304.5 With BND and BNP, Q is likely to enjoy greater support from adult black Africans in taking pride in his Gambian heritage and culture, his identity and in coping with racism. 304.6 With BND and BNP Q is likely to enjoy more music and reading. 304.7 The danger of serious adverse consequences to Q of severing his existing attachments and supporting relationships in order to transition him to the care of AMS outweighs any advantages that might be achieved by such a change. COMPLIANCE WITH THE LEGISLATION AND GOVERNMENT POLICIES 311 The Tribunal is comfortably satisfied on all the evidence that Q should be placed in the long term care of BND and BNP because: * that decision for long term placement of Q complies with the requirements of section 9 of the Children and Young Persons (Care and Protection) Act 1998 by giving paramountcy to the safety, welfare and well-being of Q; and * * the decision complies with the relevant parts of the NSW Government Placement of Siblings in Out of Home Care Policy and Permanent Planning Policy; and * * in accordance with Section 63 of the Administrative Decisions Tribunal Act 1997, the decision is the correct and preferable decision. CONTACT BY Q WITH L AND P 312 The Tribunal wishes to express concern in relation to arrangements for contact between Q and his siblings L and P. 313 It is unfortunate that the 2 households and the Department took so long to commence such contact and it has been less than regular and less than frequent. The distance between the 2 households is more than a day's comfortable drive. That will create a barrier to frequent contact. But it is clearly very important for Q's short and long term interests that the contact be as frequent as possible. If each household were willing to do the travel to facilitate the contact 3 or 4 times per year, then contact could occur for several days every second month or about every 6 weeks. 314 The Tribunal is concerned that the Department be proactive in ensuring that Q has as much contact as is practicable with L and P. Although it is not open to the Tribunal to make any order about that, it will make a recommendation. ORDERS 315 Accordingly, the Orders of the Tribunal were: 1. The decision of the Director-General of the Department of Family & Community Services to maintain the placement of Q with BND and BNP is confirmed. 2. The Tribunal recommends that the Department ensure that substantial contact is provided for Q with the members of the Applicant's household, especially his siblings P and L. ********** Amendments 15 May 2014 - Anonymisation Amended paragraphs: Paragraph 21,50, 217, 227, 260, 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: 15 May 2014