Child Protection in NSWChild Protection in NSWVariation of care ordersVariation of care orders

Study supported by the Law and Study supported by the Law and Justice Foundation of New South Justice Foundation of New South

WalesWales

Law and Justice Foundation NSW

This publication has been produced with the financial assistance of the Law and Justice Foundation of NSW. The Foundation seeks to advance the fairness and equity of the justice system and to improve access to justice, especially for socially and economically disadvantaged people. http://www.lawfoundation.net.au

Disclaimer: any opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Law and Justice Foundation's Board of Governors.

Care ordersCare orders

Children’s Courts make care orders after Children’s Courts make care orders after application by the Department of application by the Department of Community Services and consideration of Community Services and consideration of evidenceevidence

Section 79 order allocating parental Section 79 order allocating parental responsibilityresponsibility

Section 86 Contact ordersSection 86 Contact orders

Rescission or variation of contact Rescission or variation of contact ordersorders

Section 90Section 90Two stage processTwo stage processChildren’s Court must first grant leave to make the Children’s Court must first grant leave to make the applicationapplicationIf leave is granted then court considers evidence and If leave is granted then court considers evidence and submissions from all parties before deciding whether to submissions from all parties before deciding whether to grant applicationgrant applicationIf application is granted new orders may be madeIf application is granted new orders may be madeApplications may be made by Department, birth family Applications may be made by Department, birth family members or other interested parties, S90(3)members or other interested parties, S90(3)

Leave to make applicationLeave to make application

Leave granted if there has been a significant Leave granted if there has been a significant change in relevant circumstances, S90(2)change in relevant circumstances, S90(2)

Factors to be consideredFactors to be considered nature of the applicationnature of the application age of child or young personage of child or young person length of time child has been with current carerlength of time child has been with current carer plans for the childplans for the child Whether there is an arguable caseWhether there is an arguable case S90(2A)S90(2A)

Significant change in relevant Significant change in relevant circumstancescircumstances

Change is defined in relation to factors relevant Change is defined in relation to factors relevant when final care orders were madewhen final care orders were madeChange must be long lasting change, not Change must be long lasting change, not temporary changetemporary changeNot always change or lack of change in birth Not always change or lack of change in birth parents behaviourparents behaviourMay be breakdown of placement or contact May be breakdown of placement or contact arrangementsarrangementsSometimes it is difficult to see what constitutes Sometimes it is difficult to see what constitutes the significant changethe significant change

Factors to be consideredFactors to be considered

Nature of the applicationNature of the application

Age of child or young personAge of child or young person

Length of time child or young person in Length of time child or young person in care of the present carer care of the present carer

Plans for the childPlans for the child

Whether there is an arguable caseWhether there is an arguable case

S90(2A)S90(2A)

Applicant to prove as if fresh Applicant to prove as if fresh applicationapplication

If application made, or opposed, by the If application made, or opposed, by the DepartmentDepartment

If the ground presented in the application If the ground presented in the application has not previously been considered by the has not previously been considered by the Children’s CourtChildren’s Court

Ground must be proved as if it were a Ground must be proved as if it were a fresh application for a care orderfresh application for a care order

S 90(5)S 90(5)

Factors considered before varying Factors considered before varying or rescinding care ordersor rescinding care orders

Age of child or young personAge of child or young person

Wishes of the child or young personWishes of the child or young person

Length of time child or young person in care of Length of time child or young person in care of present caregiverspresent caregivers

Strength of child’s attachments to birth parents Strength of child’s attachments to birth parents and caregiversand caregivers

Capacity of birth parents to parent adequatelyCapacity of birth parents to parent adequately

Risk of harm to child if orders changedRisk of harm to child if orders changed

S90 (6)S90 (6)

OrdersOrders

If Children’s Court determines to vary or If Children’s Court determines to vary or rescind orders it may make any of the rescind orders it may make any of the range of orders available to it as for a care range of orders available to it as for a care applicationapplication

S90 (7) S90 (7)

Background to S 90Background to S 90

1997: Review of 1997: Review of Children (Care and Protection) Children (Care and Protection) Act 1987Act 1987

The planThe plan applications to vary care orders should be made more applications to vary care orders should be made more

difficult to prevent unnecessary expenditure and difficult to prevent unnecessary expenditure and distress caused by uncertainty arising from further distress caused by uncertainty arising from further litigationlitigation

applicant should prove that some changes in the applicant should prove that some changes in the situation warranted a review of existing orders situation warranted a review of existing orders

..

The mischief to be fixedThe mischief to be fixed

Regardless of merits of the case or changed Regardless of merits of the case or changed circumstances, there was no limit on the number circumstances, there was no limit on the number of applications a party could file for rescission or of applications a party could file for rescission or variationvariationGenerated significant work for the court and the Generated significant work for the court and the department department Unsettling for the child or young person Unsettling for the child or young person Clause 90 of this bill now provides that the Clause 90 of this bill now provides that the application for rescission or variation of an order application for rescission or variation of an order may only be made with leave of the courtmay only be made with leave of the courtSecond Reading Speech of 1998 bill Second Reading Speech of 1998 bill

Permanency planningPermanency planning

While there is no intention to reduce a parent’s While there is no intention to reduce a parent’s general rights to return to Court to seek custody general rights to return to Court to seek custody of their child, the bill seeks to balance the merits of their child, the bill seeks to balance the merits of such applications with the general level of of such applications with the general level of distress and instability which is likely to be distress and instability which is likely to be generated for the child generated for the child

Second reading Speech of Second reading Speech of Children and Young Children and Young Persons (Care and Protection) Amendment Persons (Care and Protection) Amendment (Permanency Planning) Bill (No 2) (Permanency Planning) Bill (No 2) June 2001 June 2001

Purpose for the studyPurpose for the study

Comments from lawyers about the number of Comments from lawyers about the number of section 90 applicationssection 90 applicationsFrom observation in Children’s Court it appeared From observation in Children’s Court it appeared to be a complex processto be a complex processHearing comments from birth parents, Hearing comments from birth parents, departmental caseworkers and lawyers to the departmental caseworkers and lawyers to the effect that if birth parents lost their children then, effect that if birth parents lost their children then, if they fixed up their lives, they could apply for a if they fixed up their lives, they could apply for a section 90section 90Question: Is a section 90 variation or rescission Question: Is a section 90 variation or rescission achievable for birth parents? achievable for birth parents?

MethodologyMethodology

Exploratory descriptive study of Children’s Exploratory descriptive study of Children’s Court filesCourt filesPurposive sample of one year of s90 Purposive sample of one year of s90 applications that were completed in the applications that were completed in the year of studyyear of studyAttempt to review files of all completed Attempt to review files of all completed S90 applications in Parramatta, S90 applications in Parramatta, Campbelltown and Bidura Children’s Campbelltown and Bidura Children’s CourtsCourts

Data CollectionData Collection

Review of files and recording of Review of files and recording of information on standard data sheetsinformation on standard data sheets

Non identifying information onlyNon identifying information only

Attempt to review sample of transcripts of Attempt to review sample of transcripts of “reasons for decision” not successful“reasons for decision” not successful

Substantial help provided by Children’s Substantial help provided by Children’s Court staff to identify filesCourt staff to identify files

Issues in data collectionIssues in data collection

No comprehensive electronic data baseNo comprehensive electronic data base

Some files not available – possible further Some files not available – possible further applicationsapplications

Changes in the Children’s Court at the Changes in the Children’s Court at the time – St James, Cobham, & Lidcombe time – St James, Cobham, & Lidcombe closed, Parramatta openedclosed, Parramatta opened

Some files listed were not section 90 Some files listed were not section 90 applications for the study periodapplications for the study period

Overview of resultsOverview of results

Sixty-five (65) families had s90 Sixty-five (65) families had s90 applications completed between 1 April applications completed between 1 April 2006 and 31 May 20072006 and 31 May 2007More than 65 applications, some multiple More than 65 applications, some multiple applications per family applications per family Majority from Parramatta Children’s CourtMajority from Parramatta Children’s Court Parramatta – 45Parramatta – 45 Campbelltown – 14Campbelltown – 14 Bidura - 6Bidura - 6

Year original orders madeYear original orders made

Original care orders were madeOriginal care orders were made

1991-1995 1991-1995 6 6 9.2% 9.2%

1996-20001996-2000 6 6 9.2% 9.2%

2001-20052001-2005 3737 56.9%56.9%

20062006 1313 20.0%20.0%

MissingMissing 3 3 4.6% 4.6%

TotalTotal 6565 100.0% 100.0%

Distribution of length of s 90 Distribution of length of s 90 mattersmatters

Days between filing and decisionDays between filing and decisionLess than 7 daysLess than 7 days 9 9 13.8%13.8%8-30 days8-30 days 1919 29.2%29.2%31-90 days31-90 days 1515 23.1%23.1%91-180 days91-180 days 1313 20.0%20.0%181-365 days181-365 days 7 7 10.8%10.8%MissingMissing 2 2 3.1% 3.1%TotalTotal 6565 100%100%

Number of children Number of children

Subject of s 90 applicationsSubject of s 90 applications

MaleMale 5454 55.1% 55.1%

FemaleFemale 4444 44.9% 44.9%

TotalTotal 9898 100%100%

Indigenous childrenIndigenous children

Subject of s90 applicationsSubject of s90 applications

MaleMale 88 47.0%47.0%

FemaleFemale 99 52.9%52.9%

Twelve (12) families and 19 children Twelve (12) families and 19 children identified as Indigenous in the sampleidentified as Indigenous in the sample

Number of children per familyNumber of children per family

1 child1 child 4343 66.1%66.1%

2 children2 children 1414 21.5%21.5%

3 children3 children 5 5 7.7% 7.7%

4 children4 children 3 3 4.6% 4.6%

TotalTotal 6565 100% 100%

Ages of childrenAges of children

MaleMale FemaleFemaleUnder 1Under 1 0 0 1 11-5 years1-5 years 17 17 10 106-10 years6-10 years 11 11 13 1311-14 years11-14 years 19 19 19 19Over 14Over 14 3 3 1 1MissingMissing 4 4 0 0TotalTotal 54 54 44 44

Who made the s90 application?Who made the s90 application?

DoCSDoCS 4040 61.5%61.5%

MotherMother 1212 18.5%18.5%

FatherFather 5 5 7.7% 7.7%

Both parentsBoth parents 4 4 6.2% 6.2%

CarersCarers 2 2 3.1% 3.1%

OtherOther 2 2 3.1% 3.1%

TotalTotal 65 100%65 100%

Type of original care ordersType of original care orders

PR to Minister to 18PR to Minister to 18 2525 38.5%38.5%

PR to Minister, limitedPR to Minister, limited 1818 27.7%27.7%

PR to parentPR to parent 9 9 13.8%13.8%

PR to other family/friendPR to other family/friend 9 9 13.8%13.8%

Shared PR/supervisionShared PR/supervision 3 3 4.5% 4.5%

MissingMissing 1 1 1.5% 1.5%

Total Total 6565 100%100%

Nature of application 1Nature of application 1

PR to Minister to 18PR to Minister to 18 23 23 35.4%35.4%

ContactContact 13 13 20.0%20.0%

PR to motherPR to mother 7 7 10.8%10.8%

Allow overseas travelAllow overseas travel 4 4 6.2% 6.2%

PR to family/friendPR to family/friend 4 4 6.2% 6.2%

PR to fatherPR to father 3 3 4.6% 4.6%

Restore both parentsRestore both parents 3 3 4.6% 4.6%

Change placementChange placement 3 3 4.6% 4.6%

Nature of application 2Nature of application 2

Failed undertakingsFailed undertakings 22 3.1%3.1%

Supervision orderSupervision order 11 1.5%1.5%

Rescind DC orders*Rescind DC orders* 11 1.5%1.5%

MissingMissing 11 1.5%1.5%

TotalTotal 65 100% 65 100%

* Appeal to DC prior to s90 in 2 of the 65 * Appeal to DC prior to s90 in 2 of the 65 matters matters

Significant change 1Significant change 1

Non compliance undertakings 17 (26.2%)Non compliance undertakings 17 (26.2%)Changes parent behaviour 13 (20%)Changes parent behaviour 13 (20%)Placement breakdown 9 (13.8%)Placement breakdown 9 (13.8%)Child self placed 5Child self placed 5 (7.7%)(7.7%)Child travel needsChild travel needs 4 (6.2%) 4 (6.2%)Inadequate parentingInadequate parenting 3 (4.6%) 3 (4.6%)Parent change/child wishes 2 (3.1%)Parent change/child wishes 2 (3.1%)Appeal against DC ordersAppeal against DC orders 2 (3.1%) 2 (3.1%)

Significant change 2Significant change 2

Allege illegal action by DoCS 1 (1.5%)Allege illegal action by DoCS 1 (1.5%)Sibling old enough, carerSibling old enough, carer 1 (1.5%) 1 (1.5%)Death of family carerDeath of family carer 1 (1.5%) 1 (1.5%)Child abused in foster careChild abused in foster care 1 (1.5%) 1 (1.5%)Parent rejects restoration Parent rejects restoration 1 (1.5%) 1 (1.5%)Difficulty finding LT carerDifficulty finding LT carer 1 (1.5%) 1 (1.5%)MissingMissing 4 (6.2%) 4 (6.2%)TotalTotal 65 (100%)65 (100%)

Children’s Wishes

This data is tentative

Whether child agreed with application Not known or not old enough – 36 Seems like 18 matters child wishes in line with

application and 8 where wishes against application

When child agreed with application was it granted?

In 22 matters seems like orders were in line with child wishes

Was application granted?Was application granted?

YesYes 4747 73.8%73.8%

NoNo 1313 20.0%20.0%

DoCS consent 1DoCS consent 1 3.1% 3.1%

Parent consentParent consent 3 3 1.5% 1.5%

MissingMissing 1 1 1.5% 1.5%

Total Total 6565 100% 100%

OutcomesOutcomes

Orders variedOrders varied 4545 58.5%58.5%Orders rescindedOrders rescinded 2 2 13.8%13.8% Application dismissed 10Application dismissed 10 12.3%12.3% Application withdrawnApplication withdrawn 5 5 10.8%10.8% DoCS withdrewDoCS withdrew 2 2 3.1% 3.1% MissingMissing 1 1 1.5% 1.5%Total Total 6565 100% 100%

New orders madeNew orders made

PR to Minister to 18PR to Minister to 18 (pre 25)(pre 25) 3636 55.4% 55.4%PR Minister, time limited (pre 18)PR Minister, time limited (pre 18) 55 7.7% 7.7%PR to other family,friends (pre 9) 3PR to other family,friends (pre 9) 3 4.6% 4.6%Shared Minister, familyShared Minister, family 2 2 3.1% 3.1%PR to parentsPR to parents (pre 9)(pre 9) 1 1.5% 1 1.5%Supervision orderSupervision order 1 1 1.5% 1.5%MissingMissing 1 1 1.5% 1.5%TotalTotal 6565 100%100%

Regression analysisRegression analysis

Dependent variable: application grantedDependent variable: application grantedIndependent variables: application by DoCS, Independent variables: application by DoCS, total children per matter, time between original total children per matter, time between original orders and s90 applicationorders and s90 applicationSignificant association between DoCS as Significant association between DoCS as applicant and the application being grantedapplicant and the application being grantedOther variables not significantly associated to Other variables not significantly associated to change of orders or whether application grantedchange of orders or whether application granted p<.01p<.01

Issues arising from resultsIssues arising from resultsThere were relatively few s 90 applications There were relatively few s 90 applications completed in the study year completed in the study year Most often s 90 applications in this sample Most often s 90 applications in this sample were determined in a short period of timewere determined in a short period of timeDoCS is the most frequent applicant and is DoCS is the most frequent applicant and is more often successful than others more often successful than others Most often final orders are final orders, as Most often final orders are final orders, as far as birth parents are concernedfar as birth parents are concerned Some applications demonstrate child Some applications demonstrate child wishes direct the change being requestedwishes direct the change being requested

Implications for policy, practice and Implications for policy, practice and researchresearch

Many birth parents who lose their children Many birth parents who lose their children grieve for a long time, hope that one day their grieve for a long time, hope that one day their children will be returnedchildren will be returnedFor practitioners it is essential to be honest and For practitioners it is essential to be honest and clear with birth parents from the outsetclear with birth parents from the outsetThere should be more services to advocate for There should be more services to advocate for and support birth parents and such services and support birth parents and such services should not be funded by DoCSshould not be funded by DoCSFurther research and more open debate is Further research and more open debate is needed about the operation of child protection needed about the operation of child protection legislation and procedureslegislation and procedures