Department of Communities and Justice (DCJ) and Jack and Jill [2020] NSWChC 3

Children's Court New South Wales

Medium Neutral Citation: Department of Communities and Justice (DCJ) and Jack and Jill [2020] NSWChC 3 Hearing dates: 28 February 2020 Date of orders: 03 April 2020 Decision date: 03 April 2020 Jurisdiction: Care and protection Before: Children's Magistrate D Williams Decision: The Department is to file new permanency plans Catchwords: CHILDREN - Care and protection – permanency plan involving guardianship Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Department of Communities and Justice (DCJ) and Teddy [2020] NSWChC 1 Category: Principal judgment Parties: The Secretary The Children Representation: Mr Schier, solicitor, for the Secretary Ms Smith, solicitor, Direct Legal Representative for Jill Mr Amos, solicitor, Independent Legal Representative for Jack File Number(s): 2019/00292984-001 Publication restriction: Pseudonyms have been used to anonymise the children and parties

Judgment 1. Jack and Jill are brother and sister. Jack is 6 years old, and Jill is 13. In October 2014, the Court made a final order placing Jill under the Guardianship of her maternal grandmother. In early March 2019, the maternal grandmother sadly passed away. 2. Jack lived in the care of his mother from his birth until she also sadly passed away in April 2019. He then lived for a short time in the care of his father, but the father relinquished care in May 2019. He has not participated in these proceedings. 3. The Department brought these proceedings in September 2019, seeking care orders for both Jill and Jack. The Department have assessed that there is no realistic possibility of restoring either child to the father within a reasonable period of time. The legal representatives for each of the children accept that assessment, as does the Court. 4. Jack and Jill are now being cared for by their maternal cousin. The legal representatives for the children each agree that this is an appropriate placement. The maternal cousin has agreed to care for the children in the long-term, and the Department consider that this is an appropriate placement as well. 5. The Department filed care plans for each child on 20 December 2019. Accompanying the care plan is a proposed minute of care order. In the care plans and in the minute of care order, the Department seeks an order allocating parental responsibility for each of the children to the Minister for a period of two years. The minute of care order also seeks an order for a section 82 report. 6. The Department invites me to make final orders for Jack and Jill in accordance with their proposed minute of care order. Jill's Direct Legal Representative (DLR) supports the Department's proposed orders. Mr Amos, the Independent Legal Representative (ILR) for Jack, opposes the Department's proposed orders, submitting that I would not be satisfied that permanency planning has been appropriately and adequately addressed. In short, Mr Amos submits that the appropriate order is one of parental responsibility to the Minister until age 18. 7. The care plans suggest that the Department would like to progress towards guardianship in the future. The carer, the maternal cousin, does not want an order of guardianship. On page 23 of the care plan for Jack and page 24 of the care plan for Jill, under the heading, "Guardianship", the care plan poses the question, "Will guardianship provide a safe, nurturing, stable and secure environment for the child?" The highlighted answer in the care plan is, "No." The care plan goes on to say this: "Guardianship is not being considered at this stage due to the wishes of the carer, the maternal cousin, advising that she would like Jill and Jack to remain in the care of the Minister until age 18. She has stated that she needs ongoing support from Department of Communities and Justice given she has three other members of her family in her care as well as her own children... It should be noted that the Department of Communities and Justice will continue to work with the maternal cousin over the next two years to strengthen the household and either apply for section 90 guardianship or apply to the Court to extend the current order. It should be noted that guardianship is a long-term goal plan that will be reviewed." 1. The material in the care plans is supplemented by an affidavit filed by the caseworker on 27 February 2020. In that affidavit under the heading, "Housing", the caseworker indicates that the sleeping arrangements in the maternal cousin's house are not ideal, presumably because of a degree of overcrowding. The affidavit sets out some steps the caseworker has taken to assist her to get a more suitable property through housing New South Wales. 2. Under the heading, "Guardianship", the affidavit notes, at paragraph 31, that during the kinship carer assessment process in November 2019, the maternal cousin said she did not want a guardianship order because she might lose the support of the Department. Paragraph 32 reiterates that she does not feel that guardianship is currently appropriate because she needs the support of the Department in relation to contact with the father, and behavioural and medical needs of Jack and Jill. In paragraph 34, the caseworker says that she has discussed guardianship with the maternal cousin at length and indicated that it does not mean that guardianship will occur now. The affidavit says, "She now understands that the Department of Communities and Justice would like to contemplate the proposal of a guardianship application to be made in the future." 3. Paragraph 35 of the affidavit says this: "The maternal cousin is agreeable to a short-term order with the view to guardianship on the provision that: (a) Department of Communities and Justice complete a family group conference to make plans for the family to supervise contact should the father decide that he would like this to occur. (b) She receives improved support from Myrrimbarr who will be involved in her family's life for the duration of long-term care orders involving two other children in her care. (c) She receives independent free legal advice before a final order is made so that she is able to make an informed choice." 1. The Department submits on the basis of the material in the care plans and the affidavit of 27 February 2020 that the permanency plan for each of these children is one involving guardianship, and that accordingly, s 79(9) applies to this matter and restricts the maximum period of parental responsibility to the Minister to 2 years. 2. Section 79(9) is in these terms: "the maximum period for which an order under subsection (1)(b) may allocate all aspects of parental responsibility to the Minister following the Court's approval of a permanency plan involving restoration, guardianship or adoption, is 24 months." 1. The Department submits that because it is their future intention to progress towards guardianship, these permanency plans involve guardianship for the purposes of s 79(9). Mr Amos, Independent Legal Representative for Jack, submits that they do nothing of the sort. He submits that the Department's desire for guardianship is little more than a vague hope for the future.