Children's Court New South Wales Medium Neutral Citation: DFaCS re Arnott-Bloom [2015] NSWChC 6 Hearing dates: 30 & 31 March 2015 Date of orders: 01 April 2015 Decision date: 01 April 2015 Jurisdiction: Care and protection Before: Judge Peter Johnstone, President of the Children's Court of New South Wales, at Goulburn Decision: There is no realistic possibility of restoration of the children to any parent Catchwords: CHILDREN – Care and protection – realistic possibility of restoration – permanency planning/placement - allocation of parental responsibility Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34 In the matter of Campbell [2011] NSWSC 761 DFaCS re the Bell-Collins Children [2014] NSWChC 1 DFaCS re Oscar [2013] NSWChC 1 Director‑General of the Department of Community Services Re Sophie [2008] NSWCCA 250 Johnson v Page (2007) FamCA 1235 M v M [1988] HCA 68 Category: Principal judgment Parties: The Secretary, Department of Family and Community Services NSW (DFaCS) The Children The Mother The Father of Nic The Father of the twins, Thomas and Arnold The Maternal Grandmother The Carers Representation: Ms K Stanford, solicitor, for the Secretary Mr C Jowett, solicitor, for the mother Mr Hanrahan, solicitor, for the father of the twins Ms Howarth, solicitor, for the children Ms Gore, solicitor, for the carers Maternal Grandmother, litigant in person File Number(s): 7 – 9/2013 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties Judgment Reasons for decision 1. These proceedings are brought by the Secretary of the Department of Family and Community Services (DFaCS) under the Children and the Young Persons (Care and Protection) Act 1998 (the Care Act) and were commenced on 30 May 2015 following the removal of the Arnott-Bloom children from their mother on 27 May 2013. 2. The children concerned are Nic, now aged eight; and twins, Thomas and Arnold now aged four. 3. There are three children to this mother. The eldest boy and the twins have two different fathers. 4. Following the removal of the children into care, the Children's Court placed them under the parental responsibility of the Minister and subsequently found that they were in need of care and protection on 23 September 2013. The children were placed into interim out-of-home care. 5. The Secretary now seeks final Care orders in relation to the three boys in accordance with proposed permanency planning consisting of Care Plans filed on 4 April 2014 and Addendums to those Care Plans filed in court today, 1 April 2015. The Issues in dispute 1. The Secretary has made an assessment that there is no realistic possibility of restoration of these boys to any parent. 2. The permanency planning proposed, therefore, is that parental responsibility be allocated to the Minister until the children turn 18; that Nic be placed permanently with Monica and Tim Meeks; and that the twins be placed permanently with their interim carers, Jeff and John. Specifically the Secretary does not support placement of any of the boys with the maternal grandmother. Whilst the Secretary would no doubt have preferred to have had the three boys in one placement, he considers that is not possible, given issues that have arisen indicating that Nic is not relating well with his younger siblings and due to Nic's own special complex needs. 3. The permanency planning provides for a regime of contact between the boys and their birth family and as between each other. 4. The fathers of the boys do not seek restoration to them, nor do they dispute the Secretary's assessment that there is no realistic possibility of restoration of the children to the mother. Similarly, they do not dispute the Secretary's assessment that the boys should not be placed with the maternal grandmother. 5. The father of Nic, has previously indicated that he is not opposed to the proposed permanency planning, although he did not engage in the present hearing. 6. The father of the twins has submitted through his solicitor that he simply wants a continuing role in the upbringing of the children to the extent that that is possible. He supports the permanency planning as otherwise proposed as set out in the Care Plans. 7. As to Mr and Mrs Meeks, they originally sought joinder with a view to having all three children placed with them, but according to their solicitor, their instructions now are that they accept, having listened to the evidence, that the twins should remain with their current foster carers. They do indicate to the Court, however, that if that placement were for some reason to break down, they would be very happy to have the twins also in their care. They will support contact between the siblings and otherwise have no concerns surrounding the permanency planning as proposed. It is proposed as part of that permanency planning that Nic be placed with them and they are very happy about that prospect. 8. The mother disputes the permanency planning proposed by the Secretary and seeks restoration to her forthwith of all three of her children. Alternatively she asks the Court to approve their placement with her mother. Failing that, if it becomes necessary, she does not oppose placement of all three boys with Monica and Tim Meeks. She is, however, opposed to the boys being separated and in particular she opposes the placement of the twins with the interim carers, Jeff and John. 9. The maternal grandmother also disputes the permanency planning. 10. If the Court determines that there is a realistic possibility of restoration of the children to her daughter, the mother, she would support her daughter to the best of her ability in that event. The maternal grandmother believes, however, that her daughter has not made sufficient progress at the present time having regard, in particular, to her past drug use and unstable mental condition, to properly care for the children and believes the children should not be restored to the mother at this stage. She believes, however, that in the fullness of time her daughter will put her drug issues behind her and become sufficiently stable emotionally to enable the boys to be returned to her care. In the meantime she submits that the boys should be placed with her, the maternal grandmother, until such time as it may be appropriate for the mother to make an application for restoration under s 90 of the Care Act. 11. The Independent Legal Representative for the children, appointed by the Court to act in their best interests, is of the view that the Secretary's proposed permanency planning is adequate and appropriate and in the best interests of the children. Specifically she does not support restoration to the mother or placement of the children with the maternal grandmother and she accepts the need to separate the boys into distinct placements as proposed. She does not share the concerns of the mother or the maternal grandmother as to the ability or adequacy of Jeff and John to be carers of the twins. 12. The first issue for determination therefore is whether there is a realistic possibility of restoration of any children to their mother. 13. If not, the next issue becomes whether the Court should reject the proposed permanency planning on the basis that it considers the children or one or more of them should be placed with the maternal grandmother. 14. If not, the issue then becomes whether or not the placements proposed for the three children, that being Nic with the Meeks and the twins with Jeff and John are appropriate. To put the proposition slightly differently, is there any unacceptable risk associated with the placement with any of those carers? 15. The Court will need to determine the issue of the allocation of parental responsibility, and finally, the Court will need to make an expressed finding as to the appropriateness and adequacy of the proposed contact regimes of the boys with their family of origin and as between themselves. The applicable legal framework 1. The proceedings are governed by the Care Act. The parties all agree that there is no need in the present proceedings for the Court to have regard to any additional principle or consideration that arises by reason of the United Nations Convention on the Rights of the Child (UNCROC) and that the Care Act provisions should guide the Court in its considerations of the relevant legal principles within which the issues in this matter are to be determined. 2. The objects of the Care Act are set out in s 8. The Act then proceeds to set out the principles pursuant to which the Care Act is required to be administrative, which are contained in various sections of the Care Act but predominantly are enunciated in s 9. The overriding principle is that the safety, welfare and wellbeing of children are paramount, even to the exclusion of a parent: s 9(1). 3. Subject to that overriding principle, there are other particular principles to be considered and applied where appropriate. I will not set them all out in this judgment but they include, for example: * the requirement to take action that involves the least intrusive intervention in the lives of the children and their families: s 9(2)(c); * the requirement that any out-of-home placement be made in a timely manner and that the younger the child, the greater the need for early decisions: s9(2)(e); * the retention of relationships with people significant to the child: s 9(2)(f). 1. It is now well-settled law in cases involving the care and protection of children where issues such as removal, restoration, custody, placement and contact are to be determined, that the proper test to be applied is that of "unacceptable risk" of harm to the child or children concerned: M v M [1988] HCA 68 at [25]. In the application of that test the Court will determine firstly whether a risk of harm exists, and secondly, the magnitude of that risk. 2. Whether there is an unacceptable risk of harm to a child is to be assessed from the accumulation of relevant factors proved according to the relevant civil standard: Johnson v Page (2007) FamCA 1235. That standard of proof is on the balance of probabilities: s 93(4) of the Care Act. The decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether that standard of proof has been achieved: Director‑General of the Department of Community Services Re Sophie [2008] NSWCCA 250. Generally in respect of issues such as those in the present proceedings, including restoration and placement, the burden of proof rests upon the Secretary. 3. The Children's Court must not make a final or Care order unless it expressly finds that the permanency planning for the particular children has been appropriately and adequately addressed: s 83(7)(a). 4. The Care Act sets out the meaning of permanency planning and the requirements for a permanency plan which I do not need to spell out here: see particularly s 78A and s 9(2)(e). The Care Act also sets out the requirements for the allocation of parental responsibility which, similarly in the present case, are not controversial; see particularly s 79(3). 5. The first principal issue in the present case involves the question of restoration. Whether there is a realistic possibility of restoration of a child to a parent is a difficult concept but one with which the Children's Court is frequently required to grapple. Let me assure all the participants in this case that a decision not to restore a child to a parent is one which Judicial Officers do not make easily or lightly. 6. The legal principles to be applied are now reasonably well articulated. Whether or not there is a reasonable possibility of restoration is a critical threshold issue in any care proceedings which informs the permanency planning that is required to be undertaken in respect of any child who has been removed from a parent and is found to be in need of care and protection: s 72 of the Care Act. 7. It is for the Secretary in the first instance to make the assessment: s 83(1). The responsibility then passes to the Court to decide whether or not to accept the assessment of the Secretary: s 83(5). If the Court does not accept the Secretary's assessment it may direct him to prepare a different permanency plan: s 83(6). 8. Regard must be had to two matters: 1. the circumstances of the child, and 2. the evidence, if any, that the parent is likely to be able to address the issues that led to the removal of the child. 1. The phrase "realistic possibility of restoration" is not defined. The Supreme Court decision In the matter of Campbell [2011] NSWSC 761, a decision by Slattery J, sets out various principles for the making of the required determination, which I have endeavoured to summarise in various previous judgments in this Court, including DFaCS Re Oscar [2013] NSWChC 1 at [29] and more recently in DFACS Re the Bell-Collins Children [2014] NSWChC 5 at [78] where I provided a summary which I now paraphrase in the following way: * A possibility is something less than a probability, that is, something that is likely to happen. A possibility is something that may or may not happen. That said, it must be something that is not impossible. * The concept of a realistic possibility of restoration, however, should not be confused with the mere hope that a parent's situation will improve. * The possibility must be realistic, that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon unlikely hopes for the future. It needs to be sensible and commonsensical. * It is at the time of the determination or decision that the assessment is to be made. It must therefore be a realistic possibility at that time, not merely a future possibility. * It is going too far to read into the phrase a requirement that a parent must always, at the relevant time, have demonstrated participation in a programme with some 'significant runs on the board': Re Campbell at [56]. 1. The determination of the two limbs of the requirement must be undertaken in the context of the totality of the Care Act, in particular the Objects set out in s 8, and the other principles that govern the application of the Act including the paramountcy principle and the notion of unacceptable risk of harm which I have discussed above. 2. Having made the assessment required in relation to restoration, the Secretary must then proceed to address the proposed planning for a child: s 78. That plan is then presented to the Children's Court for its consideration: s 83(2) and s 83(3). 3. Generally permanency planning will consist of the Care Plans prepared by the Secretary: s 78. That Care Plan may, however, be supplemented by other material including undertakings or other documents so as to make up the totality of the permanency planning. 4. The totality of the permanency planning should, however, address all the relevant considerations required by the provisions of the Care Act, particularly those which specifically require the Children's Court to be satisfied about, such as the placement principles, including adoption and guardianship; the principles in s 9; the principles in s 11, s 12 and s 13 relating to Aboriginal children, and s 78A(3) and s 78A(4); the allocation of parental responsibility: s 79 and s 80; the need for any undertakings; the need for any supervision orders: s 76; the arrangements proposed for contact for the child with people significant to them; the services that need to be provided to address the child's particular need; and so on. 5. Where it is proposed that a child is to be placed in out-of-home care, the permanency planning must set out the placement proposed. Details of the exact placement are not always required but there must be sufficient detail to enable the Court to have a reasonably clear understanding of the plan for the child: s 83(7A). 6. Permanency planning in the present case, as I have already indicated, consists of the Care Plans filed on 4 April 2014 and the Addendums filed in court today, 1 April 2015. 7. The Care Act requires that before making orders that have a significant impact on any person who is not a party to the proceedings, the Court must give that party an opportunity to be heard on the matter of significant impact. 8. In the present case, the maternal grandmother was joined as a party. She was, however, a litigant in person. Nevertheless, she had a full opportunity to be heard and she filed a series of affidavits and had the opportunity to give additional oral evidence, and to address the Court by way of submissions. Notwithstanding she was self-represented, as I said to her, she is clearly very capable and her affidavits were lucid, competent and her oral interaction with the Court was also competent and articulate. 9. Similarly, in addition to the mother and the two fathers, the proposed carers for Nic, Mr and Mrs Meeks, were joined as parties and they were legally represented. 10. The children were represented by an Independent Legal Representative appointed by the Court to represent their best interests: s 99 and s 99D(b), in particular sub-paragraph (v). The mother 1. I propose at this point to say something about the mother and the historical background to the removal of the children from her care in early 2013. 2. The mother is now 37 years old. She told me that she grew up on a farm and was brought up as a single child by her mother as a single parent, her mother having "chucked" her father out when she was still very young. She went to a local primary school until she and her mother moved to the Goulburn area. Here she attended High School, although she did not complete school. 3. Subsequent detail came to light this morning when I was provided with the earlier clinical reports and I quote from the Clinical Report of 2 September 2010: "The mother was asked her about her familial background. She stated she had experienced a 'normal' upbringing with no alcohol or drug issues being present in her family. However, she was mainly raised by her mother due to her parents' separating when she was a baby. It appears that her parents shared a sexual relationship during her childhood and she had only sporadic contact with her father. She said that her father kept her for several months when she was seven years of age, necessitating her mother bringing a Family Law recovery order. At her own volition, she had again resided with him at the age of 13 but left after six weeks. The mother said that she had been raped by an uncle on her mother's side when she was 12. She had not informed any person about this until the age of 17…. After the rape she said she refused to attend school and remained at home with her mother sitting around watching TV until the age of 16 when she went to the Central Coast for a while before returning to Goulburn. She then moved back to the Central Coast shortly afterwards and remained there until the age of 23. During this period of her life she stated she had commenced using cannabis and alcohol but added that she had not been alcohol dependent. For a time she shared a relationship with another man and they had a child together who died at one day old. Although the mother volunteered little information about this time, the impression gained was that it had been largely an unstable period. When she returned in 2002 to Goulburn she met Roy. Roy's father, however, took his own life at the beginning of that relationship and the mother reflected this event was responsible for them lapsing into severe depression and becoming reliant on illicit drugs such as cannabis and morphine." 1. During the course of her relationship with Roy, the mother became a serious drug abuser to the point where, as she described it, she was on the way to becoming a serious drug addict. However, she then fell pregnant with Nic, who was born when she was 29, and it was the birth of Nic that gave her some positive view on her life and, in her words, prevented her from becoming a long-term drug addict. She asserts that she ceased taking drugs during that pregnancy though there is no independent corroboration for that assertion. She did, however, split up with Roy after Nic's birth due to his ongoing lifestyle which she did not want to continue to be involved in. 2. Subsequently she met Simon and she commenced a relationship with him and they resided together with Nic for a period. Unfortunately her relationship with Simon became a volatile one and there was significant discord between them over time and their relationship was attended by illicit drug use and emotional and psychological instability. 3. The domestic relationship deteriorated to the point where, due to issues of ongoing domestic disharmony and drug abuse, mental issues and substantial neglect, Nic was removed from the household under an emergency care and protection order and placed into care on 25 March 2010. 4. For the next 20 months Nic was placed into the care of Monica and Tim Meeks, and all the evidence suggests that that was a positive time in Nic's life in terms of the care, love and attention he received. 5. Shortly after Nic's first removal, the mother fell pregnant again. She asserts again that she ceased using illicit drugs during that pregnancy, but again there is no independent corroboration for that. Subsequently, in early 2011, the twins, Thomas and Arnold, were born, Simon being their father. On 9 December 2011, following a period of supported transition, Nic was returned to the full-time care of his mother and her then partner Simon. 6. The relationship between the mother and Simon, however, continued to deteriorate and become even more volatile. The Clinician described the situation in his report of 5 March 2014 at paragraphs 23 to 25: "Simon related a history of conflict with the mother, particularly after Nic's restoration, saying they frequently had issues, claiming she found it difficult to relate to more than one child at a time. He said she often behaved towards him a fashion bordering on violence which affected his own fragile mental health. He stated she would fly into rages and scream uncontrollably at him and the children and would experience long periods of depression. He denied acting aggressively towards her. As their relationship deteriorated, Simon became more withdrawn and probably further antagonising the mother. When he called police over his concerns in May 2012, he said they did not believe him and he was scheduled. He claimed he was not psychotic and should not have been hospitalised, though he accepts he was mentally unwell at the time. During his hospital stay, apparently the mother frequently visited with the children but after this time he declined to return to the house preferring to live with his mother. Asked his reasons, Simon said he was still too worried about the mother's behaviour and afraid he would be scheduled once more with their relationship again deteriorating… Thereafter, at her invitation, Simon stayed a few times at her home …he stated her behaviour had not changed and he felt unsafe. Moreover, he maintained the children had become unruly and difficult to manage due to her lack of boundaries. He said he felt sorry for her but he didn't know what to do. When the children were removed last year Simon described his feelings for the children as 'glad'." 1. Thereafter and in the year leading up to the removal of the children was again one of great instability, which increased. The history is documented in the Report attached to the Initiating Application filed on 30 May 2013, and again I propose to quote parts of that report from paragraphs 5 to 21: "On 29 May 2012, Community Services received a report in relation to the psychiatric admission of Simon following a significant deterioration in the management of his mental health condition, schizophrenia. The report also indicated ongoing domestic violence and daily use of THC (cannabis) by Simon and the mother. On 5 July 2012, Community Services received a report in relation to drug use by the mother and leaving the children in the care of Simon who is reportedly unable to supervise the children adequately due to his current mental health… On 16 March 2013, Community Services received a report in relation to the mother's threats to commit suicide. These threats were made via text message. Simon had stated: 'You have to make a decision about the kids. I need your help and as you won't help I have to go to the enemy and we now know what that means. I'm going to ask Rene on Monday to help me more or I'll kill myself on Tuesday. Either way we'll lose the kids cause they have no‑one to look after them. I'm sorry but I will never be good enough for you, the boys, DOCS, or anyone else. I've hung in as long as I can. I have to accept that and stop pretending. It's all over now. The question is, will you step up to the kids and save them?' The mother later reported to Community Services that this was a 'cry for help' to get Simon to step up to his responsibilities. The mother had not been taking her antidepressant medication for several days. On 27 March 2013, a case meeting was held for Arnold and Thomas. The mother and Simon were present with their mental health support workers. During this meeting Simon informed the mother that he was unable to continue his relationship with her and informed Community Services that he was not in a position to be considered a primary or secondary carer for the children... On 16 April 2013 during a phone call, the mother informed the caseworker that she was struggling to meet the full-time care needs of the children and without the support of her former partner Simon. The mother also reported that she was unhappy with the condition of her home not being clean, unpacked or organised, and that this had been the situation since six months prior to Nic being placed into care in 2013. On 18 April 2013, the caseworker conducted a home visit to the mother during which it was observed that Nic's bedroom was piled with toys and belongings up to hip height. Nic could not access his clothes dresser and only had a narrow path from the door to his bed. The mother's bedroom was full of furniture and boxes, clothing, animal cage and other belongings piled from the floor to the ceiling. There was a short path from the door to the bed which had clothing piled on the end... On 23 April 2013, Community Services made a referral to the hoarding and squalor service provided by Catholic Care to assist the mother in addressing the care of her home and hoarding behaviours that were impacting on the living spaces and bedrooms within the home... On 21 May 2013, the caseworker received a phone call from the mother. During this call the mother became very distressed at times and informed the caseworker that she had approached Simon to take care of Arnold for a month or so. The mother stated that she needed a break from Arnold to get the other children in a routine and that Arnold fractures the house. The mother explained that this meant that he climbs up on things, climbs the child safety barrier to turn on the stove and get into the kitty litter and has smeared faeces down the hallway whilst she was asleep. The mother reported that Simon refused to take Arnold into his care. The mother stated several times throughout the call that the children's needs always came before hers and she never had time to deal with her issues and needs. The mother stated that she was angry and resentful to the fathers of the children as they get to have a relationship with the children free of responsibility and she does not. The mother was offered the option of a temporary care agreement for all three children to assist her to have respite. The mother did not commit but said that she would think about this option. On 24 May 2013, the caseworker attended a home visit to the mother. The mother did not let the caseworker into the home for five to ten minutes. The caseworker spoke to Arnold through the glass and continued to knock. The vacuum cleaner could be heard inside the home. When the mother had finished with the vacuuming she opened the door to the caseworker and explained that she had to clean up a bag of kitty litter that Arnold had poured onto the floor after she went back to sleep that morning. The house smelled strongly of cat urine and faeces. The floor was dirty and there were remnants of kitty litter under the furniture in the dining room and lounge room indicating that it had been there for some time. The kitchen was dirty with unwashed dishes. The cushions were all torn off the lounge and dried food smeared all over the coffee table. The caseworker challenged the mother about her current state of mental health, some of her parenting decisions such as taking Ritalin and deciding to send Arnold away for up to two months. During this visit the mother informed the caseworker that she felt she was in the same position that she was prior to Nic being removed from her care. This included her mental health and the care of her home. The caseworker spoke about options for moving forward and the mother stated that she would not relinquish the children voluntarily as they were the only things keeping her alive but acknowledged to the caseworker that the current situation was unacceptable and significantly undermined her capacity to care for the children. On 27 May 2013, two caseworkers conducted a home visit with the mother and both Arnold and Thomas were present. The house smelled strongly of cat faeces and urine... The mother had cleaned the house from the previous visit, however, there was still a considerable clutter stacked through the house. The caseworkers discussed concerns about the lack of supervision to the children in the morning whilst the mother slept, her ongoing mental health concerns, the care of the home and indications that she was not coping with the care of her children. The caseworkers again offered the option of a temporary care agreement to provide respite until the parenting capacity assessment could be completed. The mother refused this option and again stated that the children were the only reason that she was alive. The mother made a number of very irrational statements throughout this visit including that it was a government conspiracy that prevented Simon from residing in the home, that the government discriminated against women by not forcing Simon to be part of their family and take responsibility for his children, that Simon did not have a serious mental illness and that he had fooled everybody. On 27 May 2013, following the home visit, the caseworker received a phone call from the mother's mental health worker, Ms Karen Skillman, who advised that she had just received a phone call from the mother stating that she knew the children would be removed from her care and that when this occurred she would kill herself. Ms Skillman advised that it was her assessment that the mother was serious in this threat and would be reporting this to the mental health access line for crisis assistance. On 27 May 2013, Nic was assumed into care from the Public School. When Community Services attended the home of the mother to remove Arnold and Thomas from her care, the mother was not at the residence. When contacted she demanded to know what had happened to Nic. This was explained to her… The mother terminated the call and refused all attempts to make contact. The mental health crisis team also failed to make contact with the mother. The maternal grandmother made intermittent contact with the mother where she repeatedly threatened to commit suicide. She refused to disclose her location but indicated that the children were in the motor vehicle with her. The mental health crisis team attended the Police Station to make a report. A number of police officers and vehicles attended the residence and after several hours police were able to engage the mother and have her agree to return to the home and relinquish the children. The police were then able to remove the children from the vehicle and place them in the care of caseworkers." The expert evidence 1. There is, as I have said, a series of clinical reports prepared through the Children's Court Clinic by Mr Norman Goodsall, an experienced children's clinician. These reports are dated 2 September 10, 13 March 2011 and 25 February 14. The two earlier reports are now in evidence before me in addition to the final report. 2. It is important to understand that the Children's Court clinical reports are not prepared on behalf of any party but are independently commissioned reports prepared for the Court. Children's Court Clinicians are not witnesses for any party; rather they are the Court's witness. They can be safely viewed as unbiased and impartial in most instances. 3. Importantly, in the present case, the Clinician Norman Goodsall was not required by any party for cross-examination. On that basis therefore it may be assumed that the opinions he has expressed remain unchallenged, at least to the extent that the facts and premises upon which his opinions are based remain valid. I propose therefore to focus on various sections of his reports which resonate with me and which I regard as evidence that should be accepted and taken into account when considering the issues before me for determination. In other words, I regard that evidence as relevantly probative and impacts upon the question of restoration to the mother and placement with the maternal grandmother, even til the present day. 4. Dealing firstly with his report of 2 September 2010 Mr Goodsall says: Page 10: "The mother displayed limited capacity to associate illicit drugs with the subject of parenting, at least in her case. She considers that any drugs she may have taken had not impacted on her parenting ability which, in her view, remained sound." "The mother disputed statements claiming she has had ongoing mental health issues saying she had not been involved with the local mental health unit for over four years. Despite this being the case, it appeared she had struggled with depression for many years emanating from the sexual assault and probably exacerbated by illicit drug use and dysfunctional relationships. This could be expected to have significantly impaired her capacity as a parent." Page 11: "The mother demonstrated some motivation to seek personal change as evidenced by her attendance at ongoing counselling. The pertinent issue remained her ability to channel personal change into parenting capacity amid continuing uncertainty about her relationship with Simon and the possible impacts resulting from the birth of the twins... The mother-daughter relationship appears to have waxed and waned over the years, going for periods with little contact between them." Page 12: "The mother's mental health appeared to be stable at the time of the assessment but it was clear she had experienced mood fluctuations in the past ... Although she appeared to have made some personal progress this year, it was questionable whether the issues that gave raise to Nic's removal last March had significantly altered." And finally on p 13: "Nic's behaviour towards his mother and grandmother at contact demonstrated poor attachment in the presence of significant emotional issues in the relationships which could require intensive therapeutic intervention should he return home. The mother's attitude towards the Department, backed up by the grandmother, suggests that she would experience much difficulty working cooperatively with them should her son be in her care. Both the mother and the maternal grandmother impressed as strong-willed and unlikely to find it easy to comply with requirements they disagreed with. Given the above factors, one was left with insufficient confidence to predict that Nic's best interests could be guaranteed by returning to live with the mother." 1. Turning to the most recent report of 25 February 14, Mr Goodsall states: Firstly at p 5: "Nic was returned to his mother in 2011 under a graduated restoration plan, but Nic, together with his two younger brothers, were removed again from the mother in May 2013. Currently the mother is residing at Goulburn, Simon lives with his mother and Roy is in accommodation attached to a Salvation Army rehabilitation facility. The maternal grandmother continues to reside in her house at Goulburn. After the birth of the twins, Arnold and Thomas remained with their parents under a parent responsibility contract with the Department. When Nic was restored at the end of 2011, the family continued to receive strong support from Family and Community Services as acknowledged by both parents during their respective interviews. However, the mother and Simon found it challenging to cope …and to meet Nic's special needs at the time. Further, although they gave different accounts of the situation during the assessment, it is clear they struggled with their own relationship further complicated by the father's mental health condition. Then in May 2012, Simon was scheduled and spent three months in hospital. He did not reside permanently with the family after he was discharged but lived with his mother. Thus the mother was, for the most part, placed in the position of a single parent with her three children, a role she found increasingly difficult to manage. On the day of the children's removal, the mother was scheduled and spent a week in hospital." Turning to p 11: "With Simon, the mother started to experience panic attacks, although she maintained this had more to do with the antidepressant she was taking at the time... Several other factors contributed to her distress. She had to move house and said this placed an enormous strain on her and she was faced with moving on her own as well as managing her three children. Then the children contracted scabies and were quarantined at home for three months, thus placing a greater burden on her. During this period, the mother felt she had not received proper support from Community Services. She said she constantly asked for weekend respite care without success... Although the mother accepts that she was struggling with the children for some time, she does not agree with their removal, maintaining she ought to have received greater assistance... She maintains she does not suffer depression but has an anxiety disorder. She predicts that she will stay well and experience few issues coping with the children from now on, seeming she has the support of her mother. (One wondered about their relationship in the past as there did not seem to have been much support offered by the grandmother when the mother was struggling)." And on p 12: "In her view, all three children should wish to return to her as she considers herself their main attachment figure. The mother requests this occur immediately and sees no necessity for a graduated restoration... The maternal grandmother The maternal grandmother stated she has applied to be the children's carer but is yet to be assessed. Although she favours their restoration to her daughter, she is willing to give up work and look after them should they not return to their mother. Asked about her contact with the family since the birth of the twins, she replied she had visited about once a week but always felt unwelcome by Simon who was rude to her. She claimed that she had been unaware of their domestic issues over the time as 'my daughter didn't confide in me'. In hindsight, she felt she should have made more inquiries. She went on to say that her daughter can be verbally aggressive and while their relationship over the years has been up and down it is basically good. In her opinion her daughter improved as a parent after Simon left the house and she was less tense and more relaxed with the children. She started to visit more often, yet, somewhat contradictorily, she then stated her daughter had not been coping as well as she should have with managing the three children, adding 'my daughter wasn't in a great place'. The maternal grandmother agreed with her daughter that Community Services had not provided essential support in the latter months when she needed it most. Also, like her daughter, the grandmother was critical of the children's removal, viewing the action as unnecessary." Page 13: "The maternal grandmother seems sincere in her desire to support her daughter, yet circumspect in some of her discussions especially pertaining to their relationship. Like the occasion of the previous assessment, she appeared to have not played a major role in supporting the family until the children were removed." Page 16: "The mother is obviously genuinely motivated to look after her three children. Theoretically she understands what is required to maintain a suitable and safe family environment. In the past, for periods, she appears to have been able to do this. However, two major factors have interfered. The on-off relationship with Simon compounded by his own severe mental health issues has had a destabilising effect on her parenting ability. As well, she suffers her own mental health issues which appear associated with an ongoing depressive illness, although she claims it has more to do with anxiety. Whatever the cause, she does not possess strong resilience and seems to have low frustration tolerance, a point made by Roy, Simon and her mother, who described her as becoming 'verbally aggressive' when stressed." Page 17: "The maternal grandmother proposes taking the children in the event of restoration not occurring with their mother. However, there are several pertinent concerns associated with her proposal. First and foremost she is not living in appropriate accommodation with the children. During my previous visit, the home was seen to be in a dilapidated condition... The maternal grandmother is in full-time work and taking responsibility for small children would mark a major lifestyle change, apart from any issue associated with her age. Moreover, she did not apparently play a significant role with her daughter and the children when they were together and the mother-daughter relationship appears to have suffered strain in the past, therefore one wonders about the future situation should the children live with their grandmother." And then p 18: "The mother experienced acute episodes of personal stress she maintains were due to ongoing problems with Simon and a lack of support from Community Services when she approached for respite. Whilst the mother denies she had been unable to care for the three children simultaneously, it seems she found the task increasingly difficult. On the day of their removal she was admitted to hospital after threatening to take her own life. She had also expressed suicide ideation in a letter to Simon earlier that year but claimed these statements were made out of frustration and should not have been taken literally... While it would appear desirous to obtain a report from her treating psychiatrist regarding diagnosis and a long-term prognosis, the mother's breakdown seemed to have been reactive to stressful life events. Two such events were the deteriorating relationship with Simon and the eventual impact of Nic's restoration on the mother's ability to cope as a single parent. Unfortunately, one cannot be confident that the mother has overcome her personal issues to the extent necessary for restoration to occur." 1. And then finally under the heading "Recommendations", the Clinician says: "The mother On the basis of this assessment, restoration is not recommended. If restoration is considered feasible by the Court, in the long-term, one would expect the mother to remain in psychological therapy and focus on dealing appropriately with personal stress including developing specific strategies for overcoming impulsive control difficulties. It is not possible to predict the length of time necessary for the required improvements to be made, if indeed they can occur, but a period of six to nine months seems reasonable. If eventual restoration is considered, the mother would need to experience frequent and regular contact with the children, building periods of weekend visits prior to full restoration. She could possibly benefit from completing a course dealing with managing challenging behaviour. However, the main problem with a further attempted restoration is the likely effect on the children, especially Nic, where they have been unsuccessfully restored to the mother before. Should restoration occur once more, permanent success would be vital for his long‑term emotional security." 1. And then finally in relation to the maternal grandmother, the Clinician says that long‑term placement with her is not recommended. Submissions made on behalf of the mother 1. Mr Jowett, solicitor, appeared for the mother and addressed me at the conclusion of the evidence. He submitted that the mother's position since removal had dramatically changed leading into 2015. This has occurred with various sources of assistance. The mother has got her house in order and it is now neat and tidy. 2. So far as her mental health is concerned, this has improved significantly in the year following removal and in this regard she has turned herself around to the point that, in the opinion of Dr Owen, she no longer demonstrates any mental health features. 3. The relevance of her drug abuse is so low that even the Clinician places very little weight on it concerning her capacity to care for the children. 4. In summary, she has addressed her mental health concerns and no longer needs ongoing treatment; she has satisfactorily addressed any drug issues, they having been minimal in any event, as they were at the time of removal. Similarly her mental health state is sufficiently stable to justify restoration of the children to her at the present time. The only ongoing stressor that she currently suffers is the loss of her children. 5. The Court could, however, order an alternative plan by way of permanency planning that provides for a gradual restoration with inbuilt protections as to her drug use and monitoring thereof and for her ongoing mental condition. 6. Alternatively, the mother supports short-term placement with her mother, the maternal grandmother, until her issues have been satisfactorily addressed such that her children could return to her care. Submissions made by the maternal grandmother 1. As I said, the maternal grandmother was self-represented but she presented her case lucidly and articulately, if misguidedly. Unfortunately for the reasons I will come to, I believe her position in these proceedings is misguided. 2. Similarly, her understanding of the relevant principles surrounding care and protection are flawed and a little confused in some of her submissions on questions of law. That, however, is entirely understandable and forgivable, given that she is not a qualified practitioner. 3. She started by saying that it is not that she does not have insight, it is just that she has a different insight from that of the Department. Unfortunately, that means that the insight of the maternal grandmother diverges from my own view of the world. 4. She then took me to the report of Dr Dee Neveling. I asked her why but it appears that she did so with a view to supporting the proposition that any concern surrounding her daughter had been addressed, or alternatively that the children should not really be placed with the current carers, particularly Jeff and John. 5. I myself was not proposing to refer to Ms Neveling's report because on my reading of it, it provided little or no support for the concepts of either restoration to the mother or placement of the children with the maternal grandmother, but since it has been raised, there are some parts thereof that ought to be put on the record. 6. Ms Neveling says at p 21 and following: "Thomas and Arnold are three years old and Nic is eight years old, therefore all three of the children are still young and probably developmentally younger than their chronological ages as a consequence of their history of neglect, trauma and abuse. Although Thomas and Arnold have had the benefit of approximately 20 months consistent loving and supportive foster care placement, Nic recently moved to an alternative placement as a result of his ongoing behavioural difficulties and high needs… There is no doubt that their early history will have an ongoing impact on them for a long time to come and the research base is consistent in acknowledging that the trajectory for children repairing from trauma is a long-term and complex ..." 1. She then goes on to deal with the question of contact and ultimately recommends that any contact between the mother and the maternal grandmother should be supervised. 2. Ms Neveling is a well-regarded and experienced clinical psychologist. Her overall conclusion is that of support for Jeff and John as carers. 3. The maternal grandmother made other suggestions. As far as the mother's mental health state is concerned, she put to me that she has progressed really well and the evidence before the Court supports the proposition that the children could be restored to her. 4. She described the Department's case as being very contradictory and she was critical of the Department, which is consistent with her history. 5. She put to me that placement with her was a viable option, that she would take leave without pay. It would have the advantage of the children being placed together. In her submission, she was the most suitable person to care for all the children because of the supportive family environment and minimal lifestyle change involved. She said that she has the specialised skills needed for parenting children with complex needs having regard to her own work experience. She said she was well-placed to deal with the children's needs and challenging behaviours and could provide the appropriate medical support for them. 6. This was her own opinion of herself and unfortunately for her, it was not shared by anyone else including the experts, being the Clinician and Ms Neveling. 7. She referred to her relationship with her daughter and whilst she accepted that there have been challenges in the past and that there would no doubt be challenges in the future, she said what really matters is how they would deal with those challenges. 8. By way of conclusion, she again submitted criticisms of the Department and their support for her daughter at critical times. Findings and conclusions 1. The mother has clearly made significant efforts in recent times with a view to having the children restored to her. It is my view, however, that the concerns giving rise to unacceptable risk of harm to the children persist. I accept that she has addressed issues of cleanliness and untidiness in the house, including hoarding and disorganisation. One could not be certain, however, that such manifestations of not coping would not re-emerge if the three children were to be restored to her. 2. Other concerns centre around domestic volatility, emotional and mental stability and drug abuse. Clearly, at least for the time being, given she is no longer in a relationship with Simon or any other man, questions of domestic volatility can be presently discounted. The mother's propensity for domestic disharmony, however, could properly be viewed as an inability to cope adequately with situations of stress. 3. I also remain concerned about her emotional fragility and her continuing drug use. 4. There is evidence that the mother has not been as transparent and candid about her past drug use as could be hoped. For example, she failed to make full disclosure to her mental health team. 5. Given that Nic has been twice removed from her care, one would have hoped that the mother would have made better and more genuine attempts to cease any drug-taking, especially in the last 12 months leading up to the hearing of these proceedings. But she did not. She has continued to use drugs. 6. It is evident to me that her emotional state remains fragile and brittle. It is true that she has made various attempts to improve herself and it does appear that her mental condition and emotional state has been much improved in recent times. On the other hand, during this period there has been no particular stressor to which she has been exposed. For my part, I could not consider a restoration having regard to the long history of drug abuse and emotional instability until more time has passed and she has demonstrated a long period of stability and abstinence from drug-taking, and even then, one would not contemplate an immediate restoration. On the occasion of the first restoration of Nic, there was a long period of preparation for that event. It would, in my view, be absolutely necessary for a similar course to be followed if it were to be contemplated that a second restoration could occur. 7. At the present time, however, it is entirely apparent to me that there is no realistic possibility of restoration of the children to the mother. This accords with the views of the Clinician. Whilst it might be suggested that since his most recent report in early 2014 circumstances have changed somewhat and that she has improved, for the reasons that I have already articulated, however, it is my view that in fact very little has changed. 8. The mother remains emotionally fragile. She still uses illicit drugs. She still lacks insight, maintaining for example that she is being unfairly treated, indeed victimised by the Department, persisting with irrational views about the need for her children who have been removed into care, to remain in care, even suggesting that the current carers, Jeff and John, pose an unacceptable risk to her children whilst in their care, there being no evidentiary basis for such a proposition. 9. I find therefore that the mother is not likely to be able to address the issues that led to the removal of the children from her. 10. I have also taken into account and had regard to the circumstances of the children. Nic in particular has his own complex needs. I am satisfied that the mother remains incapable of satisfactorily addressing those concerns or of providing for and addressing those needs for him. Further disrupting Nic's life by a second restoration to the mother at the present time against a clear and present risk of a second failure is unthinkable. 11. Similarly for the twins, given the bonding that has occurred between them and their present carers, it would, in my view, be contrary to their interests to remove them from those carers at the present time, particularly given the evidence before me as to the positive nature of the current placement and the extent to which they are thriving in the care of those carers. 12. I am satisfied that a restoration to the mother at the present time would give rise to unacceptable risk of harm. In this regard, I agree with and adopt the opinions expressed by the Clinician, some of which I have already quoted. In my view, she and her mother are confusing a realistic possibility of restoration with the mere hope that things will be different in the future. It is my view, fanciful and sentimental to suggest restoration is realistic and in my view it is based on what I consider to be unlikely hopes for the future. 13. For all these reasons, I find that there is no realistic possibility of restoration to the mother. I find further that there is no realistic possibility of restoration to either father. I therefore accept the assessment of the Secretary in relation to restoration and confirm that it is in the best interests of the children to be placed elsewhere. 14. Similar considerations apply to the notion that the children might be placed with their maternal grandmother. I regard this prospect as similarly idealistic and sentimental. It is also contrary to the interests of the children. 15. It is not doubted that the maternal grandmother loves her grandchildren, but love does not always translate into an objective capacity to care for children and to keep them safe. Despite her wishes and her best intentions, I am satisfied that the maternal grandmother does not have the capacity to properly care for the three children or to keep them safe and I find that placement with her likewise poses an unacceptable risk of harm. 16. Firstly I am satisfied that although she believes she can provide what these children need and can provide the resources required to address their complex needs resulting from their traumatic history, she simply will not, in my view, be able to. These children require significant ongoing help. The plan the maternal grandmother put before me in relation to that did not, in my view, stack up. 17. More importantly, however, it is clear to me that she lacks the required level of insight especially concerning the risks posed by her daughter to those children. 18. The maternal grandmother still maintains, despite what I see as overwhelming evidence to the contrary, that the children should never have been removed. She still supports a restoration to her daughter, a proposition with which everybody else disagrees, and she still blames the Department and is clearly incapable of working cooperatively with caseworkers and in the best interests of the children. 19. I have said before in other cases, if someone lacks insight, it is often difficult to explain to that person who lacks the insight that they do, and why they do. The maternal grandmother will no doubt disagree with my view of her, but when she said to me in her submissions that the Department's insight was different to hers, I thought that clearly demonstrated my point. 20. The maternal grandmother has consistently demonstrated over recent years an inability to "step up to the mark" in the interests of the children at critical times, particularly where that might bring her into conflict or disharmony with her daughter. Rather, she supported her daughter, indeed participated in the antagonism and conflict generated with caseworkers who, it might be said, are simply doing their best to protect the children. Suggestions of conspiracy, bias and spite on the part of the Department and its officers is not only baseless but insulting. 21. I agree with the Clinician's view of the maternal grandmother, in particular that she lacks the ability to be objective. I find that the maternal grandmother lacks the necessary capacity to be an ally for and a protector of her grandchildren from her daughter and otherwise, which makes her, in my view, unsuitable to be their full-time carer. 22. I am therefore satisfied that the children should not be placed with the maternal grandmother. Permanency planning 1. Turning to issues of permanency planning, I will address firstly the question of placement. 2. One of the difficult decisions in this case is the need to split the boys: for Nic to be in a placement separate from the twins. The reasons for this, however, were carefully explained by Ms Doherty and in other documents and I am persuaded, notwithstanding the negative features attended by such a split, that it is indeed a necessary step to be taken in the circumstances. 3. That being the case, it is in my view appropriate that Nic be placed with his current carers, Monica and Tim Meeks. They clearly love him and will be caring and adequate carers for him. There is no suggestion from any party that Mr and Mrs Meeks are not appropriate prospective full-time carers for Nic and I thank them for undertaking this responsibility. 4. The only criticism of the present carers, Jeff and John, to be safe and loving carers for the twins, emanates from the mother and the maternal grandmother. This criticism, as I have said before, is not based on any objective considerations and I dismiss it. The ongoing antagonism towards those carers will, however, have the potential to negatively impact on the placement, including the frequency, nature and quality of the contact in the future. Hopefully that will dissipate over time, but in the short term it would be, in my view, wise for contact with her family members to be supervised. 5. Other than that, I am of the view that the proposals in the permanency planning surrounding contact, including sibling contact, have been appropriately and adequately addressed. I see no need for any specific or particular orders for contact which should remain a casework issue to be addressed from time to time having regard to prevailing circumstances. 6. It is proposed that parental responsibility for the three children to be allocated to the Minister in all aspects and I am satisfied that that is appropriate. 7. For all these reasons, I am expressly satisfied that the permanency planning for the three children has been appropriately and adequately addressed. 8. I also consider it appropriate that a s 82 report be provided at six months for each child. 9. I therefore make orders as follows: 1. Parental responsibility for each child is allocated to the Minister until they attain the age of 18. 2. Reports pursuant to s 82 of the Care Act are to be provided by the Secretary to the Children's Court in six month's time. 1. I will sign the Minute of Care Order which will be placed on the Court file. ********** 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: 14 September 2016