PARTIES: ––––

IN THE LOCAL COURT

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No.21140836

REASONS FOR JUDGMENT

(Delivered 16 May 2012)

Chief Magistrate Hannam:

1. The CEO of the Department of Children and Families seeks leave to withdraw an application for a protection order for a child known as Annabel. At the outset, it was argued by the CEO that leave of the Court was not required for an application to be withdrawn. However, I determined that as the Court has only the options available to it under s 128 of the Care and Protection of Children Act (“the Act”) once seized of a matter, leave is required for the CEO to withdraw an application.

2. The legal representatives for the child’s mother and father submit that leave ought to be granted to withdraw the application, while the child’s legal representative opposes the granting of leave.

Best Interests of the Child

3. Pursuant to s 90 of the Act, the Court must regard the best interests of a child as paramount in exercising the Family Matters jurisdiction. Section 10 of the Act also enforces the same principle in stating that “when a decision involving a child is made, the best interests of the child are the paramount concern”. In considering the application for leave, the Court is required to regard the best interests of the child as paramount.

The circumstances that gave rise to the application for a protection order

4. Annabel, who was born in May 2010 was almost 18 months when she was taken into provisional protection by the CEO in November 2011. Following provisional protection, the CEO applied for and was granted a temporary protection order by this Court. Prior to the temporary protection order expiring, the CEO sought a protection order on the grounds that Annabel had suffered or was likely to suffer harm or exploitation because of an act or omission of a parent.

5. The child’s mother has an intellectual disability and has required the assistance of a guardian for the purpose of these proceedings. The mother has conceded that she is unable to care for the child.

6. Annabel was born with a heart condition, which required surgery when she was seven months old. She was closely monitored by Health Services before and after surgery and following the surgery, she and her mother were observed at an accommodation service so that an assessment could be made of the mother’s parenting skills. Although it was reported that the mother generally coped with parenting the child, there were some episodes where the child was smacked by her mother and staff were required to intervene.

7. When Annabel was one, she and her mother went to live in an outstation with extended family, but reports were received that family members did not appear to be providing the mother with sufficient support. In October 2011, reports were made to the Department from several sources that the mother was smacking the child and that the incidents were often in response to stresses on the mother and that she appeared to be taking out her frustrations on the child.

8. Departmental staff made several visits to the child and her mother and observed that the child would readily go to strangers and cling to them and did not want to go back to her mother. This behaviour was described in the initiating affidavit as “not developmentally appropriate and indicated that the child was fearful of the mother and at risk of developing attachment issues”. It was also reported that the mother was heard yelling at the child when she was woken up early.

9. The Department made an assessment that the mother did not appear to be able to understand or meet the child’s needs as a toddler, including her need for appropriate discipline, stimulation, supervision and nutrition. The child’s mother was described as not appearing willing or able to learn and retain new information about the child’s needs for a solid food diet, stimulation, conversation and play. There were also concerns about the child’s ambivalence towards her mother and the fact that she remained at risk of physical harm from her mother due to forceful smacking.

10. In November 2011 when a protection order was sought, the Department’s assessment was that a long-term protection direction was required to ensure the child’s safety.

Role of the Father

11. The affidavit in support of the protection order and subsequent affidavits indicate that the child had been raised by her mother alone, with the support of extended family since she was born. The child’s father, who has always resided in another community, had no involvement in the child’s life.

12. It is not clear when the child’s father was served with the application and affidavit, as conflicting dates are provided in the evidence. In any event, the child protection workers first met with the father on 11 January 2012. It is also not entirely clear on what basis those Departmental Officers were dealing with the father and what form of placement was being considered at this stage.

13. The word “placement” itself is not defined in the Act, but Division 4 of Part 2.2 which deals with placement arrangements provides that the CEO must enter into a placement arrangement with other persons or bodies for a child who is in the CEO’s care. In other words, in this case, it may be that the child protection workers were exploring entering into an arrangement with the child’s father while the child was in the CEO’s care, either during the adjourned period or in the event that a protection order giving parental responsibility to the CEO were to be made.

Family-Way Placement

14. However, it appears to me that the Departmental Officer had something entirely different in mind because in paragraph 8 of her affidavit of 23 January 2012, the Departmental Officer states “DCF would like to investigate possible family-way placements with … paternal family and the assessment process is expected to take at least two months”.

15. It is a matter of serious concern to the Court that the Departmental Officer was contemplating a so-called “family-way placement”.

16. Family-way placement is a colloquial expression for a DCF practice, whereby the Department reaches an unwritten agreement with the family that the child who has been removed from a parent is placed with another family member as a substitute for bringing an application for a protection order before the Court. In this case, as subsequent events have shown, this form of placement is being pursued as a substitute for continuing with an application that is before the Court. Although this type of placement is seen within the Department as an adaptation of the Aboriginal observance of a whole of family commitment to the shared upbringing of children, it has some significant ramifications, both for its legality and propriety and its implications for the adequate and appropriate care of children.

17. Over the years and at the various inquiries, including the most recent Board of Inquiry, there have been criticisms raised about family-way placements, including that there is no ongoing financial support for carers, that proper consent is often not given, that the system operates outside the law so that the placements are not assessed or monitored as is usual with foster placements and that the placement may be seen by parents as permanent. Further, as there is no actual shift in parental responsibility, there is nothing to prevent an abusive or neglectful parent from simply removing the child back into their “care”. The recommendation of the Board of Inquiry in October 2010 was that the Department immediately review all such placement arrangements, assess the circumstances and either return the children to the parents or have the placement arrangements formalised. In these circumstances, it is of great concern that this form of placement is still being used as an alternative to pursuing an application which is before the Court.

18. In subsequent affidavits, Annabel’s father is referred to as a long-term carer, as is his extended family. However, in light of the CEO persisting with seeking leave to withdraw the application, it is clear that this form of care arrangement is not a placement arrangement as set out in Division 4 of Part 2.2 as those placement arrangements relate to placement for children who are in the CEO’s care and it is proposed that in withdrawing the application, no care order be made. In other words, this is another form of family-way placement which is being used as a substitute for continuing with the application for a protection order.

The applicant’s submission - the child is no longer in need of care and protection

19. The CEO submits that the child is now placed with her father who is clearly capable of looking after her. It was also submitted that the CEO is now of the view that the child is no longer in need of protection because another family member, namely her father, is available to care for her. It was also submitted that state intervention should only be reserved for cases where there is no parent available to care for a child.

20. This application was brought on the basis that the child was in need of care and protection, as she had suffered or was likely to suffer harm or exploitation because of an act or omission of a parent (that is, the mother).

21. Section 20 of the Act provides (relevantly):

a child is in need of care and protection (child is in need of protection) if:

(a) the child has suffered or is likely to suffer harm or exploitation because of an act or omission of a parent of the child; or

(b) the child is abandoned and no family member of the child is willing and able to care for the child; or

(c) the parents of the child are dead or unable or unwilling to care for the child and no other family member of the child is able and willing to do so (my emphasis added).

22. It is to be noted that the words “and no family member of the child is willing and able to care for the child” do not appear in the ground upon which this application has been brought. In other words, unlike a situation where a child is abandoned, or the parents are dead, unable or unwilling to care for the child, a child is in need of care and protection if she has suffered harm because of an act or omission by a single parent. In such a case, the ability and willingness of another parent to care for the child does not mean that the child is not in need of care and protection. The submission that this child is no longer in need of protection because another family member is available is, in my view, based on a misunderstanding of s 20(a) of the Act.

23. In relation to the issue of how the best interests of this child would be met by allowing the CEO to withdraw the application rather than having the Court determine the appropriate order pursuant to s 128 of the Act, it was submitted by the CEO that the Court could make no better order than placing the child with a parent. It was also submitted that the Department will continue to play a role in the child’s life described as a “family support role” and that this could be provided without an order of the Court.

Father’s Submission – s 8(3) of the Act

24. The submission made on behalf of the father relies heavily on an interpretation of s 8 and in particular, 8(3) of the Act.

25. Section 8(3) of the Act provides:

A child may be removed from the child’s family only if there is no other reasonable way to safeguard the wellbeing of the child.

26. Section 8 of the Act is contained in Part 1.3 which sets out the principles underlying this Act. It is one of six principles contained in s 7 – 12.

27. So far as the principles are concerned, I agree with Magistrate Oliver in the decision CEO for Children and Families v RN and TW [2012] NTMC 006 delivered on 29 March 2012. In that decision, her Honour stated that in her view:

“the purpose of the principles set out in Part 1.3 is to establish a framework of the matters properly to be recognised and considered by those exercising powers or performing functions under the Act, including the Court. However, they are not each absolute directions as to the exercise of powers or the performance of functions, either to DCF or to the Court. They must be considered as a whole and as to how they apply to individual cases”.

28. Magistrate Oliver noted that in some cases the principles may even contradict one and another, but that in all cases, s 10 provides that when a decision involving a child is made, the best interests of the child are the paramount concern. She notes that s 10 places the best interests of the child above the observation of all other principles to the effect that, where the child’s bests interests would not be served by adherence to another principle, compliance with that other principle is not required. What is required is that in reaching a decision, the other relevant principles are considered.

29. In this case, as I have explained, I am very concerned that the “placement” with the father has occurred in a manner not consistent with the Act and the fact that the CEO seeks leave to withdraw the application makes it clear that this form of “placement” is in substitution for the Court determining the application before it. In my view, it is not in the best interests of the child for a procedure which is outside the law to be followed in preference to the Court determining a matter which was brought before it by the CEO in accordance with the law.

Mother’s Submission

30. The mother’s legal representative made similar submissions to the father in relation to s 8 of the Act. It was submitted that the mother supported leave being granted because the mother wanted the child to live with her father because in this way, the child’s links to her culture would be preserved and that the Department have assessed that there is no ongoing risk of harm whilst the child is in the care of the father and that support services have been put in place for the father’s family.

31. In my view, whilst the matters raised by the mother are important considerations, in keeping with my earlier comments, they are some of the many matters the Court must take into account when making a decision.

The Child’s Representative

32. The child’s representative submitted that the child is and was at the time of the application in need of protection and expressed concern that some risk factors still applied even now that the child has been placed in the care of her father. The child’s representative submitted that the Court should be empowered to make an appropriate protection order and that this did not mean that the child should not reside with her father or that her mother should not have an ongoing role. She noted that the father had not been involved at all with the care of the child prior to November 2011(and the evidence indicates that he had no role at all until February 2012) that these were early days in the new arrangement and that many things could happen. Overall, she was of the view that the matter, having been placed with the Court, should be considered by the Court.

33. In achieving the object of the Act which is broadly to promote the wellbeing of children, the CEO has powers to investigate reports made to it and take other action to safeguard the wellbeing of children. Once the CEO commences proceedings in the Court however, by making an application for an order, it is then a matter for the Court to determine in its discretion whether or not to make an order. It is in my view for the reasons set out, it is not in the best interests of this child for the Court not to determine a matter of which it is seized, especially where the arrangement by which the child has been “placed” into the care of the father is outside the law and therefore, does not have the safeguards of the law. Accordingly, leave is refused.

Dated this 16^th day of May 2012

_________________________

Hilary Hannam

CHIEF MAGISTRATE