Children's Court New South Wales Medium Neutral Citation: The Secretary, Department of Family and Community Services and M [2015] NSWChC 1 Hearing dates: 21-24 October 2014; 28-29 January 2015; 4-5 February 2015 Decision date: 23 March 2015 Jurisdiction: Care and protection Before: Children's Court Magistrate Elizabeth Ryan Decision: Application to rescind orders made on 10 August 2010 Catchwords: CHILDREN – Care and protection Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Mental Health (Forensic Provisions) Act 1990 Cases Cited: M and M [1988] HCA 68 Re Anthony [2008] LC 21. Category: Principal judgment Parties: The Secretary, Department of Family and Community Services The Parents The Child Representation: Mr R Attia, solicitor, for the Secretary Mr D Hewitson, solicitor, for the Father Mr T Mara, solicitor, for the Mother Ms L Miller, solicitor, Independent Legal Representative for the Child File Number(s): 1805/09 Publication restriction: Pseudonyms have been used in order to anonymise the child and parties Judgment 1. M was born on 30 September 2009 and is now 5 years old. 2. On 19 December 2013 the Children's Court at Parramatta made an interim order giving parental responsibility for M to the Minister for Family and Community Services pending an order of the Children's Court. 3. The interim order followed an application filed by the Independent Legal Representative under s 90 of the Children and Young Persons (Care and Protection) Act 1998 [the Care Act]. The application sought rescission of orders made by the Children's Court on 10 August 2010. These orders had placed M under the joint parental responsibility of her father and the Minister for the aspect of residence, with all other aspects of parental responsibility to be allocated to her parents. 4. In the current proceedings the Secretary joins the Independent Legal Representative in seeking rescission of the 2010 orders. The Secretary seeks orders that parental responsibility for M be placed with the Minister until M is 18. 5. M's mother and father oppose the application. They want parental responsibility for M to be placed with her mother and her paternal grandfather BS; in the alternative with her mother, her father and her paternal grandfather. The legal principles 1. In determining what orders should be made, the principles to be applied include: * That the safety, welfare and wellbeing of M must be the paramount consideration, paramount over the rights of the parents: s 9(1) of the Care Act * That any action to be taken must be the least intrusive intervention in M's life and that of her family that is consistent with the paramount concern to protect her from harm and promote her development: s 9(2)(c) * That any out of home care arrangements are made in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment: s 9(2)(e) * That if M is placed in out of home care, the permanent placement principles are to guide all actions and decisions regarding her placement: s 9(2)(g). 1. In addition, as this is an application pursuant to s 90 of the Act, before making an order to rescind or vary the orders made in 2010 the Court must take into consideration the factors set out in sub-section (6). These are: * M's age and wishes and the weight to be given to her wishes * the length of time she has been in her present care * the strength of her attachments to her parents and her present carer * the capacity of her parents to provide her with an adequate standard of care * the risk to her of psychological harm if her present care arrangements are altered. 1. This matter has a length factual and legal history. I set out the relevant details below. M's parents and their mental health history 1. M's mother was born in Russia in 1966 and migrated to Australia in February 2003 with her then husband and their 14-year old daughter S. During that year the mother developed a psychotic depression which caused her to have delusional beliefs regarding S. On the night of 16 August 2003 she fatally stabbed her daughter with a kitchen knife, believing her daughter to be possessed by an evil spirit. 2. The mother was charged with the offence of murder and was subsequently found not guilty by reason of mental illness. She was ordered to be detained as a forensic patient in the Bunya Unit of Cumberland Hospital, where she was diagnosed with Schizoaffective Disorder. She was compliant with her treatment regime and responded well to it; however she suffered a minor relapse of delusional symptoms in 2006. 3. While she was a patient in Cumberland Hospital the mother met the father and formed an intimate relationship with him. 4. The father was born in Belgrade on 31 March 1968 to parents of Serbian origin. He and his family migrated to Australia when he was two years old. As a young man the father was a regular user of cannabis. 5. In November 1999 the father attacked a friend with a knife in the delusional belief that his friend wanted to harm his girlfriend. He was charged with the offence of 'wound with intent to murder', and on 26 November 2001 was found not guilty by reason of mental illness. He was detained in Cumberland Hospital where he was diagnosed with paranoid schizophrenia. 6. Like the mother, the father responded well to treatment and in 2006 he was granted a conditional release. He made good progress in the community. He attended to his medication and appointments, completed an engineering degree, and bought a house. 7. In the early months of 2009 the mother became pregnant with M. She had been allowed to commence a process of integration into the community, and was living several nights a month with the father at his home. 8. In May 2009 the Mental Health Review Tribunal [the Tribunal] reviewed the cases of the mother and the father. The father was granted unconditional release from his status as a forensic patient, with the recommendation that his ongoing treatment be managed through the Merrylands Community Mental Health Clinic. The mother was granted conditional release, conditioned among other things that she receive ongoing supervision and treatment through the Merrylands Community Mental Health Clinic. Since then her conditional release has been reviewed by the Tribunal at regular intervals, as required under the Mental Health (Forensic Provisions) Act. Children's Court proceedings and orders of 10 August 2010 1. Due to the parents' significant mental health history, the Director-General of Family and Community Services commenced proceedings in the Children's Court soon after M's birth on 30 September 2009. M was removed from the care of her parents on an interim basis, and was placed with out of home carers. 2. On 10 August 2010, when M was 10 months old, the Children's Court made the consent Final Orders referred to above. The mother was prohibited from living alone with M pursuant to an order under s 90A of the Care Act. 3. In addition the parents provided to the Court a series of undertakings which were designed to ensure their long term compliance with mental health treatment. The undertakings were to remain in place until M turned 18. They were not limited to a requirement that the parents accept their prescribed anti-psychotic medication. They were in addition to undertake to have regular psychiatric reviews even if, as was the case with the father, the Tribunal had granted them an unconditional release. Importantly, they were to provide their GP, their treating psychiatrists and their community mental health teams with an irrevocable authority to release to FCS case workers updates on their medication and relapse maintenance. 4. The Court also directed that for the following two years it be provided with six progress reports under s 82 of the Care Act. These would require CS caseworkers to make regular enquiries about the parents' mental health and report the results to the Children's Court. I note in passing that the Care Act has since been amended, such that a s 82 report can now be ordered only for the period within 12 months of the making of final orders. 5. It is clear that the extensive undertakings and large number of s 82 reports were intended to provide a protective framework, whereby the parents' treatment compliance could be externally monitored and enable the Department to react quickly to any signs of relapse. Together with the order that parental responsibility for residence be shared with the Minister, the undertakings and s 82 orders represented an unusually high degree of oversight, an acknowledgement that should the parents suffer a relapse, the risk of harm to M was a very significant one. 6. In the 2010 proceedings the Court was assisted by parenting capacity reports prepared by psychiatrists Professor Anne Buist and Associate Professor Carolyn Quadrio. Each had assessed the parents and found them to be mentally stable, and compliant with their medication and treatment. Further, the authors opined that both parents were motivated to maintain their mental health treatment into the future. On this basis they assessed as low the risk that either parent would relapse into mental illness. 7. The risk assessments conducted by these experts rested upon findings that both parents were compliant with their medication and were very likely to continue to be so, even on a voluntary basis. This rendered their risk of relapse, and hence risk of harm to M, in the low range. 8. However what the authors of the reports did not know is that at the time they were assessing the mother she was in fact not using her anti-psychotic medication. She had decided to stop taking it in 2008. Nor could they know that during the year 2013 the father also made the decision to cease regular use of his medication. The mother's treatment non-compliance: 2008-2011 1. On 21 June 2011 the mother told her treating psychiatrist at Merrylands Community Mental Health Clinic that she had not been taking her anti-psychotic medication for three years. She was immediately admitted to Cumberland Hospital and her medication was resumed. 2. On 9 December 2011 the Tribunal granted the mother a conditional release from Cumberland Hospital. Since then the conditions of her release have been regularly reviewed. The most recent review took place on 7 November 2014, when the Tribunal directed that her current conditions were to continue. Thus the mother is required to attend Merrylands Community Mental Health Clinic on a monthly basis to receive her medication by way of intravenous injections, and to be reviewed by her psychiatrist. She must also see her case manager at least fortnightly for monitoring of her mental stability and to identify any early warning signs related to her illness. 3. During the period 2008 to 2011, the mother did not tell the father, Professors Buist and Quadrio, her treatment team at Merrylands MH Clinic, the Mental Health Review Tribunal or the Children's Court that she was not taking her medication. Her non-compliance with her medication amounted to a breach of her conditional release from Cumberland Hospital, and the undertaking she gave to the Children's Court in 2010. The father's treatment non-compliance: 2013. 1. Following his unconditional discharge in May 2009, the father continued to take his medication and attend for mental health reviews. In April 2013 his treating team at Merrylands Community Mental Health Clinic discharged him onto a 'GP Treatment Plan'. A GP Treatment Plan contains recommendations only and does not impose any mandatory requirements upon a patient. 2. The father continued to be subject to the undertakings he had provided to the Children's Court in 2010. 3. The father's GP Treatment Plan recommended that his GP refer him to a psychiatrist for a mental health review at least every six months. It was expected that as a voluntary client he would continue to take his oral medication for as long as this was recommended by his treating psychiatrist. 4. In the course of 2013 the father became very involved in renovations to the home he shared with the mother and M. The renovations did not proceed smoothly, imposing financial strain on the family and very significant stresses upon the father's mental wellbeing. He stopped taking his medication on any regular basis from April 2013. 5. In mid-2013 CS case workers became aware that the father had not seen his GP since February 2013; nor had he attended Dr Kataria, his psychiatrist at Merrylands Mental Health Clinic, for over seven months. Case workers visited him on 9 August 2013, and again two months later, to raise these concerns. 6. On both occasions the father became very irate and insisted that the Department respect his privacy as he was no longer subject to any mandatory requirements from the Tribunal regarding his mental health. He made it clear that in the absence of such orders he had no intention of seeing health professionals for review unless he himself saw such a need. He refused to provide his GP or Dr Kataria with an authority for them to release information to CS case workers about his mental health. 7. The father's actions amounted to a breach of at least two of the undertakings he had provided to the Children's Court in 2010. He had undertaken to have his mental health status reviewed at a frequency deemed necessary by his psychiatrist. In addition he had undertaken to give his GP and psychiatrist an irrevocable authority to release to CS information about his mental health status. 8. On 19 November 2013 at Dr Kataria's request, the father did attend for a psychiatric review but was angry and unco-operative. Dr Kataria's notes described an 'emergence of paranoid or persecutory thinking' and noted the father's disengagement with treatment. She made an application to the Tribunal for a Community Treatment Order under the Mental Health Act 2007, seeking conditions that he attend at Merrylands MH Clinic for regular intravenous injections of his medication. The father refused to attend the MHRT hearing, and a Community Treatment Order was made in his absence. The father's offences on 19 December 2013 1. During 2013 the father did not tell anyone that he was not regularly using his medication; nor were the mother or the paternal grandfather aware of this fact. They say they noted signs of stress in his behaviour but did not think this was of any particular concern. However on the morning of 19 December 2013 the father appeared so unwell that they took the step of notifying his case manager at Merrylands Mental Health Clinic. 2. At the request of the father's case manager, police attended the family home. The father was in his car with the mother and M as his passengers. When he saw police outside his home he immediately drove away. A pursuit followed in which he drove at speed through numerous residential streets, drove through red lights and collided with several cars. He was charged with offences of dangerous driving and engaging in a police pursuit. 3. Psychiatric reports tendered in the father's sentence proceedings noted his history of paranoid schizophrenia, his recent non-compliance with medication and his relapse into 'delusionary beliefs' that the Tribunal had taken illegal action against him. The father ultimately received a discharge under section 32 of the Mental Health (Forensic Provisions) Act 1990, conditioned that he comply with the Community Treatment Order that had been imposed as a result of Dr Kataria's application. The current proceedings 1. The father's deteriorating mental health had been noted in a s 82 report filed with the Children's Court on 16 August 2013. The Children's Court directed that the matter be brought before it for review, prompting the Independent Legal Representative to commence the current proceedings seeking rescission of the 2010 orders. 2. Following the father's offences on 19 December 2013, the Children's Court made an interim order placing M under the parental responsibility of the Minister. M was permitted to live with her mother and grandfather in his home, with supervised visits from her father. 3. This arrangement continued until May 2014, when CS case workers became concerned that the father was visiting the home without authority. M was moved into temporary out of home care, where she remains. 4. The hearing of the current proceedings involved some eight days of evidence and submissions. Evidence was heard from CS case workers, both parents, the paternal grandfather BS and the paternal aunt GT. The Court also received the expert evidence of Dr Gary Banks, a clinical and forensic psychologist with expertise in the area of child protection. Reports of Dr Banks 1. In January 2014 the Department had asked Dr Banks to provide a clinical assessment of the risks involved in a restoration of M to the care of her mother and grandfather. This proposition was under active consideration by FCS case workers at the time. It involved an arrangement whereby M and her mother would live in the grandfather's home with him, sharing parental responsibility for M. 2. At that time CS workers believed that the paternal aunt would be able to provide substantial assistance to the grandfather in monitoring the mother's mental health and M's development. Case workers were also of the belief, mistaken as it turned out, that the paternal aunt was available to assume parental responsibility for M in place of the grandfather should his health preclude him from this role over time. 3. At the Department's request Dr Banks assessed the family in January 2014, and again in December 2014. He had separate interviews with the mother, the father and the grandfather, and observed their interactions with M. 4. Dr Banks set out his observations and conclusions in three reports, the accumulated findings of which are summarised below. * The parents are diagnosed sufferers of schizophrenia with episodes of severe mood disturbance and delusions. They are likely to require long term treatment and medication for their condition. * While both parents are currently compliant with treatment, previously they have had prolonged periods of non-compliance with medication, and overt resistance to resuming treatment * The risk of relapse of schizophrenia is significant in individuals who have experienced psychosis and who are non-adherent to medication. * If M's parents were to relapse into mental illness while M was in their care, this would pose a significant risk of serious harm to her safety and wellbeing * With regard to the father, at the first assessment in January 2014 he presented as 'an intensely agitated and paranoid individual'. He had strongly resisted the proposition that his non-adherence to medication had created an increased risk of a relapse and consequent risk of harm to M. * Eleven months later, with the benefit of medication, the father was 'markedly different' and had made 'positive and promising changes' that were focused on M's best interests. He was medically compliant, and was able to reflect on the impact that his management of his mental health had on M's safety and wellbeing. * The mother too was medically compliant, but showed limited insight into the need to maintain mental health stability. That is, while she understood that she had to attend the clinic as part of her conditional release, she did not appear to understand the risks to M associated with her own mental health. * The mother also lacked understanding of the importance of herself and the father being vigilant of each other's mental health. She did not acknowledge that the father's non-compliance with his medication in 2013 had led to relapse and risk for M; or that her lack of perceptiveness and assertiveness during that time had contributed to the crisis in December 2013. * The paternal grandfather was a reasonably fit 72 year-old but had some physical health problems. He had undergone a bypass operation in March 2014. Afterwards he had not adhered strictly to his medication and in November 2014 he suffered a blood clot requiring hospitalisation and surgery. He was to undergo a further operation later in 2015. * The paternal grandfather was an honest and forthright man, who was willing to do all he could to ensure that his granddaughter was cared for within her own family. He was aware of the need to notify the parents' health professionals if he became concerned about their individual mental health. He believed he would be able to be assertive towards his son if he thought his behaviour was placing M at risk. * M's father was emotionally attentive to M and readily engaged in play with her. M was comfortable in his presence and sought and obtained affection from him. This was the case both in January and December 2014. * With regard to the mother, she presented with a flat, blunted affect and showed a restricted emotional range. In her interactions with M she was attentive and smiled at M, but engaged little with her. This was the case both in January and December 2014. * M's grandfather was attuned and attentive to M, and M had an affectionate attachment to him. * M had been living with her out of home carer for seven months, and had an affectionate relationship with her. Her carer was also affectionate and protective of M. * M's placement history had brought about disruptions to her relationships with her primary carers. She continued to have a strong attachment to her parents, and since being removed from their care in May 2014 she had displayed symptoms of psychological distress, attachment disruption and insecurity. 1. On the basis of the above findings Dr Banks reached certain conclusions regarding M's long term care. These might be summarised as follows: 2. That if M remained in out of home care this would reduce the risk of harm associated with relapse on the part of her parents. However this option would not be in M's best interests because of its likely negative impact on her emotional and psychological wellbeing. As her current carer may not be able to care for her in the long term, there would be yet another placement change for M if she was not restored to her family's care, resulting in further disruption to her primary relationships. 3. However placing M under the parental responsibility of her parents, either individually or as a couple, could not be recommended. Their compliance with mental health treatment was critical to M's safety and wellbeing, but in light of their history of non-compliance they could not be trusted to manage their mental health on a voluntary basis. 4. The risk of restoring M to her parents' care might be considered acceptable if they were given parental responsibility on a shared basis with the paternal grandfather and the Minister. This arrangement would involve the parents and grandfather caring for M in the grandfather's home, with the Minister having the role of externally monitoring the parents' mental health treatment. This option would best meet M's emotional and psychological needs. Risk assessment 1. On the question of risk, the principles this Court would apply were enunciated in the High Court decision of M and M [1988] HCA 68. The risk assessment involves: '…a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.' 1. The assessment of risk also involves considering the risk to the child of disadvantage posed by the alternate care proposal put forward by the Secretary: Re Anthony [2008] LC 21. 2. Applying those principles to the present case, the Court is to determine the level of risk involved for M in a restoration to her parents, and the degree to which that risk can be mitigated by protective arrangements, not limited to the proposals put forward on behalf of the parents. The Court must weigh that risk against the risk that is involved for M if she remains in out of home care, in a long term placement yet to be identified by the Secretary. 3. The risk of harm to M does not arise from any likely deficiency in her parents' capacity when mentally well to care for her in a way that meets her physical, emotional and developmental needs. It arises from the risk of their relapse into serious mental illness. 4. In assessing the level of risk that the parents would relapse, and the consequences for M should the risk materialise, the Court places substantial weight on the expert evidence before it. This evidence derives from reports of the Community Forensic Team which advises the Tribunal in its reviews of the parents' cases, together with the reports of Dr Banks and of the parents' treating psychiatrists Dr John Basson and Dr Jim Taylor. The psychiatric evidence 1. In its report to the Tribunal dated 28 November 2013 the Community Forensic Team summarised the mother's illness as: 'a continuing condition that has been characterised by episodes of severe disturbance of mood, delusions and hallucinations. [It is our opinion that there are reasonable grounds for believing that care, treatment and control is necessary to prevent deterioration in her mental state and for her own protection from serious harm and the protection of others from serious harm].' 1. The team went on to observe that: '…her risk for psychotically-driven homicide could increase in the presence of a relapse into mental illness… ..With her current management plan in place, she falls in a category of individuals who have a low propensity for reactive aggression/violence in the short to medium term provided that the management plan is strictly adhered to. Nevertheless if [the mother] were to relapse, she could pose a specific risk to her daughter…' 1. In a report dated 30 September 2014 the father's psychiatrist Dr Jim Taylor stated: ' [W]ere [the father] to relapse in the face of treatment non-compliance it would be difficult to accurately predict his behaviour in this context. This would likely have an adverse impact on his parenting capacity.' Dr Taylor was clear about the causal link between the father's relapse and his cessation of medication: '[The father's] actions on 19 December 2013 occurred in the context of a deterioration in his mental state [probable paranoid delusions] which had resulted from non-compliance with oral anti-psychotic medication'. 1. There is therefore a consensus of expert opinion that both parents require treatment on an ongoing basis to manage the risk of their relapse into serious mental illness. 2. The Court notes and accepts expert opinion that both parents are currently mentally stable and are compliant with their treatment. However it is clear that this consensus is held in circumstances where both parents are subject to a mandatory treatment regime. Indeed it is notable that on every occasion where mental health professionals have been asked to assess the level of risk posed to M by her parents and have found it to be acceptable, their assessments have rested on the assumption that the parents are and will remain strictly adherent to their treatment regime. 3. In the mother's case the expert evidence also gives rise to a concern about her level of insight into her mental illness. In her 2010 report Professor Buist had found the mother's understanding of the risks associated with her illness to be limited. The evidence indicates that four years later little has changed. In November 2013 the Community Forensic Team noted that: '[The mother] has limited insight into her mental illness and is ambivalent about the need for ongoing treatment or follow-up. She has difficulty acknowledging her diagnosis of a schizoaffective illness and continues to be more comfortable with the term depression. She does not accept the concept of medication to reduce the risk of a future relapse'. 1. Similarly on 14 October 2014 Dr Basson noted in his report to the Tribunal that: '..even though [the mother] engaged well with the treating team, her insight about her illness, her partner's illness, need for medications and the situation they are in is poor'. 1. Dr Banks' comments about the mother's insight, noted above, are in a similar vein. 2. Regarding the father, Dr Banks said that since resuming treatment during 2014 he had been able to demonstrate 'reasonable insight' into the risks associated with his mental illness. 3. At the hearing the father was questioned about his awareness during 2013 of his deteriorating mental state. He acknowledged that he had not paid proper attention to early warning signs of relapse, such as disturbed sleep. However at times he appeared to resist the suggestion that these symptoms were linked to his lack of regular medication, attributing them rather to the stresses caused by his renovation project. In addition his characterisation of his mood-state at his meeting with Dr Kataria in November 2013 as 'irritated' contrasts with her description of it as 'paranoid and persecutory', and with Dr Banks' assessment of him at that time as 'intensely agitated and paranoid'. There is some basis for concern that even now the father's understanding of his mental illness and its risks is less than ideal. 4. Taking into account the parents' problematic compliance history, the consensus of the psychiatric evidence and the impressions I received from the parents' evidence in court, it is not difficult to conclude that there would be an unacceptable risk of harm to M were she to be restored to the care of her parents, either individually or as a couple. 5. The risk is that the parents may relapse into mental illness. The level of that risk cannot be regarded as low, given their individual history of treatment non-compliance and the concerns expressed about their degree of insight. It cannot be disputed that the consequences for M would be extremely serious should that risk materialise. 6. The Court must now consider the degree to which that risk is able to be mitigated with protective arrangements, which are not limited to the proposals put forward on behalf of the parents. Can the risk be mitigated with family supervision? 1. It is sometimes the case that the Court is able to find that a risk to a child posed by a parent or parents can be ameliorated with arrangements for supervision by other family members. 2. M's parents have submitted that were the Court to restore M to their care the risks involved would be acceptable if they were to live with the paternal grandfather and share parental responsibility with him. They further submitted that if the Court found it necessary to confer shared responsibility on the Minister as well, they would co-operate with any such arrangement. 3. According to this proposal, the grandfather would be a supervisory presence whose role was to assist in M's care and be vigilant as to the parents' mental health and compliance with treatment. He would be assisted by the paternal aunt, who lives nearby with her husband and two young sons. She has committed to providing occasional respite care for M, and to weekly visits to check on M's welfare and keep an eye on the mental stability of the parents. 4. Both the grandfather and aunt gave evidence at the hearing. They impressed as honest and sincere people with a great deal of goodwill towards M and her parents. The grandfather's affection for his granddaughter was also very evident. His commitment to ensuring that she is raised within her family can be seen in his readiness to share his home with his son, daughter-in-law and M and involve himself closely in their daily lives. 5. Despite the sincerity and goodwill of the grandfather and aunt however, having listened to their evidence I could not conclude they have the capacity to perform the supervisory role envisaged for them. 6. Both agreed that they failed to notice the father's deteriorating mental health during 2013. Even at the time of the hearing the aunt was unaware of the mother's prolonged period of medication non-compliance. For his part the grandfather agreed that he knew little about the father's illness and its symptoms. He acknowledged that he was not well equipped to have the responsibility of recognising early warning signs of relapse in either parent. 7. It can be inferred from Dr Banks' reports that he too was of the view that family oversight alone would not be sufficient to mitigate the risks involved in restoring M to her parents' care. He stated that external monitoring of their mental health would be necessary until she neared adulthood. For the reasons given above, I agree with that assessment. Can the risk be mitigated with family and Departmental supervision? 1. Dr Banks' proposal is that the family's efforts be supported by an overlay of external supervision, whereby the Department would oversee the parents' treatment compliance on an ongoing basis. Dr Banks suggested that this might be effected through a combination of two measures: first, through monitoring of the parents' mental health status by FCS case workers, and secondly, through Departmental input into such legislative mechanisms as are available to enforce their compliance. 2. In their submissions the Independent Legal Representative and Mr Attiah the Secretary's representative each queried the practical feasibility of these proposals. 3. Regarding the first measure, there are evident practical limitations on the capacity of Departmental case workers to watch over the parents' mental health stability. FCS case workers do not have the expertise to identify early signs of schizophrenia relapse, even were they in a position to visit the family at the frequency that would be required for this measure to be effective. As for making enquiries of the parents' health professionals, the limitations of this approach were exposed in 2013 when case workers found themselves powerless to obtain information from third parties because the father refused to authorise them to release it. 4. Furthermore there is reason to question the parents' capacity to co-operate with FCS case workers to the degree that would be necessary to sustain this arrangement. While he was unwell in 2013 the father responded with hostility and anger when case workers attempted to inform themselves about his mental health. And even in her current state of stability the mother lacks the insight required to sustain such a long term arrangement. In this regard I note the observations of her case manager at Merrylands Community Mental Health Team in a report she prepared for the Tribunal on 6 June 2014: 5. '[The mother]claims her family has been 'unfairly' treated by Family and Community Services and also stated that she does not trust any services that work for the Government…she remains distressed with Family and Community Services of the reasons given, their attitude and action of having had M removed'. 6. The second element of the role proposed for the Department is that it provide input into the legislative processes that are available to enforce the parents' compliance. After all, for some months now mandatory treatment orders made under NSW mental health legislation have resulted in stable mental health for both parents. 7. However there are two difficulties with this approach. 8. The first is that there is no legislative power to mandate an individual's mental health treatment and review on a long term basis. The mother is currently subject to a conditional release order which compels her to attend regularly at Merrylands Mental Health Clinic for medication and review. Pursuant to section 46(1) of the Mental Health (Forensic Provisions) Act 1990 however, the necessity for these conditions must be reviewed by the Tribunal every six months. Similarly, the father's current Community Treatment Order is by force of legislation a finite one. It will expire in June 2015 unless application is made to the Tribunal for a further Order. 9. Secondly, there no effective means for the Department to contribute to the Tribunal's decision-making processes so as to influence its determinations in a way which safeguards M's interests. The Minister for Family and Community Services has no standing to appear before the Tribunal or to make submissions at conditional release reviews. Nor is the Minister among the class of persons who may make application to the Tribunal for a Community Treatment Order. 10. Furthermore it must be remembered that the Tribunal is not a child protection jurisdiction. When making decisions about the parents the Tribunal must decide whether placing conditions upon them is necessary for their protection from serious harm, or the protection of others from serious harm. Unlike this Court, the Tribunal has no obligation to place primacy on M's safety and welfare. 11. There is therefore no mechanism by which the parents can be compelled to accept treatment and review on a long term basis, nor any effective means for the Department either to monitor their compliance with or influence the renewal of short-term compulsory orders. Conclusion 1. The decision for this Court is a difficult one. It is clear that the parents love M deeply and that she is strongly attached to them. Moreover Dr Banks expresses concern that M would find it challenging to settle well in out of home care. Since being removed from her parents' care she has displayed symptoms of distress and insecurity. These fears are compounded by the information given to the Court that M's current carer may not be able to care for her on a long term basis, meaning that there will be yet another placement change for her if she is not returned to her parents' care. 2. These are all matters which are relevant to the Court's determination whether to grant the current s 90 application. To place the above matters within the relevant legislative context, the Court would accept that M wants to return to her parents' care; that she has been in their care for the greater part of her five years; that she is strongly attached to them; and that there is a risk to her of psychological harm if she is placed in out of home care, in a long term placement yet to be identified by the Department. 3. However when considering an application under s 90 the Court must also consider whether the parents have the capacity to provide M with an adequate standard of care. There is no evidence that in a condition of stable mental health the parents are not able to care for M in a way that meets her physical, emotional and developmental needs. 4. There is however very strong evidence to support the conclusion that in order for this Court to find that the parents could provide M with an adequate standard of care, it would need to be satisfied that there was a framework in place which reasonably assured their long term compliance with their mental health treatment. A restoration of M to her parents' care in any other circumstances would expose her to an unacceptable risk of serious harm. A very careful review of the evidence convinces me that only in these circumstances can the paramount consideration of M's safety, welfare and wellbeing be satisfied. 5. For the reasons given above, I am not able to accept that the arrangements put forward on behalf of the parents can provide a means of reasonably assuring their compliance with mental health treatment in the long term. Nor am I able to envisage any other restoration arrangement which might provide this assurance. 6. I allow the application to rescind the orders made in this Court on 10 August 2010. 7. In allowing the application I could not fail to be conscious of the intrusive effect that this action will have on M's life and that of her family. For the reasons given above however, it is the only action that is consistent with the paramount concern to protect M from harm. Given the evidence of M's strong attachment to her parents and grandfather, and consistent with the 'least intrusive' principle, there should be as liberal an amount of contact between M and her family as is practicable taking into account also the need for her to develop secure attachments within her long term out of home placement. 8. The matter is adjourned for the Secretary to prepare an Amended Care Plan. ********** 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: 25 August 2015