Children's Law News 2009

 

CLN 7 - October 2009

Supreme Court decisions

Re Louise and Belinda [2009] NSWSC 534 – Forster J
Section 72 was never intended to restrict or qualify the circumstances in which an order under section 90(1), rescinding or varying an existing care order, could be made. Section 71(1) is applicable where the Court is considering the fate of an application for care orders under sections 61 or 62 but not where the application is made under section 90 for the rescission or variation of an existing care order. “Harm” in section 90(d) includes an adverse effect on the safety, welfare and well-being of a child. Section 9(d) is not intended to promote either living with natural parents or living with carers. Absent considerations to the contrary, it promotes stability, absence of change and the maintenance of the status quo. Section 9(d) is ambulatory. In the case of a care application made under section 60 it has the effect of requiring the court to be reluctant to remove a child from its natural parents unless there is a compelling reason to do so. Where an application is made under section 90 the least intrusive form of intervention would normally mean not interfering with existing care arrangements. The force of the requirement imposed by section 9(d) will vary from case to case, and a court will undoubtedly have regard inter alia to the strength of the respective bonds that a child may have with his or her natural parents and his or her foster carers.

Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 – Brereton J
Parens patriae - Scope of power - Where 15-year-old child has extensive history of serious self-harming, violent and anti-social behaviour – Where experts strongly support preventative confinement of child in secure accommodation to facilitate treatment plan – Where Director-General seeks order authorising indefinite involuntary detention of child in secure accommodation unit – Whether such order may be made in parens patriae jurisdiction – Relevance of child’s human rights under UNICEF's Convention on Rights of the Child.

CLN 6 - June 2009

Children’s Court decisions

Re Chanlina – Mitchell SCM
Considers the importance of culture and attachment in deciding whether a child should be returned to her mother.

Papers

Paper – ‘Non -Accidental Injury in Care Proceedings
'A Digest for Practitioners’
A paper by Stephan Herridge, solicitor.

CLN 5 - May 2009

Children’s Court decisions

Re Lincoln and Raymond – Mitchell SCM – April 2009
Baby is found to have been shaken – expert evidence of Dr Innes as to alternative explanation for extensive and serious injuries to baby is rejected. Re Anthony considered and approved.

Re Michael – Mitchell SCM – April 2009
Where the Minister is seeking parental responsibility it is settled that the Children’s Court is not entitled to demand to know the identity of the proposed carers and certainly not entitled to insist that the proposed carers provide evidence to the court or make themselves available for cross-examination. However where proposed carers put themselves forward or are put forward by the Director-General as persons to whom parental responsibility or a share of parental responsibility for a child or young person should be allocated, then, particularly when a parent raises a specific objection to that particular carer or carers, the court will normally require evidence from them and, if sought, their availability for cross-examination.

R v TM and FM – Still CM – April 2009
Matters to be taken into consideration on sentencing young persons charged with indictable offences in the Children’s Court.

CLN 4 - April 2009

Supreme Court decisions

Re Frieda and Geoffrey [2009] NSWSC 133 – White J
Magistrate is found to have erred in his assessment of risk of harm to children – interim hearing - the question is not whether the parents have recognised the problem and attempted to do something about it. The primary question is what is required in order to protect the children from an unacceptable risk of harm. The question under s 9(d) is what is the least intrusive intervention in the life of the children consistent with the paramount concern of protecting them from harm and promoting their development? Given the clear evidence of risk of harm and the absence of evidence that action has been taken to date which could be expected to be effective to deal with that risk, there is no proper basis for the Magistrate’s conclusion that leaving the children with the parents until the case can be heard does not represent such an unacceptable risk of real harm to them as to warrant an interim order removing them from their parents. To place any significant reliance on the parents’ undertakings there would have to be a basis for the Magistrate to be satisfied that the undertakings would be honoured.

Papers

Paper – ‘Uxoricide: When dad kills mum, what to do with the child?'
A paper by Dr CJ Lennings.

CLN 3 - March 2009

District Court decisions

BS v Minister for Department of Community Services- Robison J
Meaning of “exceptional circumstances” in relation to a costs order pursuant to s88 of the Children and Young Persons (Care and Protection) Act 1998. In making the costs order against the Department the factors taken into account include that the Department’s case was untenable given the uncontradicted yet weighty expert evidence.

RL and DJ v Department of Community Services – Garling J
The section 13 principles do not apply to a placement which is not an out of home care placement. “Related” or “relative” as defined in the Regulations included a step-grandparent in this case.

Papers

Paper – ‘A Sensible Balance: Re Sophie and the Standard of Proof in Care Proceedings’
A paper by Michael Hinchey, April 2009.

CLN 2 - February 2009

Children’s Court decisions 

Re Leonard – Senior Children’s Magistrate Mitchell
“Realistic possibility of restoration,” in s 83 is cast in the present rather than the future tense. The realistic possibility needs to be shown as existing at the time of the hearing even if the appropriate time for effecting the restoration has not yet arrived.

DPP v Thomas Jones – Children’s Magistrate Hannam
When deciding whether to commit the matter to the District Court or dispose of the matter in a summary way in the Children’s Court the issue to be determined is whether there would be adequate scope to appropriately sentence the young person if found guilty in light of the maximum control orders that a Children’s Magistrate may impose.

CLN 1 - January 2009

Supreme Court decisions 

Re: Georgia and Luke (No 2) [2008] NSWSC 1387 – Palmer J
Parens Patriae jurisdiction and interference with Children’s Court Proceedings – Whether “extraordinary circumstances” exist – DoCS’ officers remove children for no justifiable reason – Children’s Court Clinic assessor strongly recommends immediate return of children – DoCS’ officers seek to delay return for further four months by further proceedings in Children’s Court – welfare of children at serious risk – abuse of power by DOCS officers.-HELD: Extraordinary circumstances warrant interference by Supreme Court in Children’s Court proceedings.

Papers

Paper – ‘Advocacy in Care Proceedings’
A paper by Robert James McLachlan, solicitor.