WM & FM v CEO Department of Children and Families [2012] NTSC 67

APPEAL - Local Court - order made that CEO must not move the children from their current placement without notifying the legal representative of the children 28 days in advance - impermissible fetter on the discretion of the CEO and inconsistent with CEO's parental responsibility - appeal allowed

Care and Protection of Children Act s 6, s 7, s 8, s 8(4), s 9, s 10, s 10(1), s 10(2)(d), s 11, s 12, s 51, s 121, s 121(1), s 123, s 123(1)(c), s 128, s 128(1), s 143, s 146, s 146(6)(a), s 146(6)(b), s 147(7)

Appellant (FM): Northern Territory Legal Aid Commission

Appellant (WM): Northern Australian Aboriginal Justice Agency

Respondent - CEO: Solicitor for the Northern Territory

WM and FM v CEO Department of Children and Families & Ors

[2012] NTSC 67

No. LA 8 and 9 of 2011 (2110629, 21106592, 21106594, 21106595 & 21106596)

[1] The appellants are the father and mother of five children, JM (aged 11), NM (aged 9), MM (aged 7), PM (aged 5) and HM (aged 3). The parents have lived together in a de facto relationship on and off since the first child was born. They and the children are all of Aboriginal descent.

[2] There has been a history of child protection concerns relating to the family and several incidences of the children being exposed to domestic violence between the parents. In the early hours of the morning on 13 February 2011, staff of the Department of Children and Families were called to the home of the family by police after the children were found asleep in the house alone. There was blood on the floor, apparently from the mother self harming, an absence of food in the fridge, and the house was dirty. The CEO Department of Children and Families ("the CEO") took the children into provisional protection under s 51 of the Care and Protection of Children Act ("the Act").

[3] On 23 February 2011 the CEO filed an application in the Local Court under s 121 of the Act seeking a protection order in relation to each of the children with a short term parental responsibility direction pursuant to s 123(1)(c) giving parental responsibility for the children to the CEO for a period of 12 months. In the mean time the five children were placed in three separate foster homes.

[4] Psychological reports were prepared on both the children and the parents. These recommended conditions which would have to be met by the parents in working towards reunification of the family unit. The psychological report on the parents identified issues of domestic conflict and violence, alcohol abuse and the legacy of their own childhood abuse. The report said that they both appeared to have the parenting and personal skills to adequately parent their children and were highly motivated to do the right thing by their children and to get them back under their care. A programme was put in place and during 2011 the parents worked towards satisfying the conditions for reunification. In the mean time, the application for a 12 month protection order remained on foot.

[5] An order was made under s 146 of the Act that the children be separately represented by a legal practitioner appointed for the purpose. The CEO, the parents and the children's representative agreed that the parents would continue working towards satisfying the conditions for reunification set out in an agreed reunification plan.

[6] The CEO's application for a 12 month protection order was set down for hearing and was heard before the learned Chief Magistrate on various dates in October and November 2011. On 17 November 2011 her Honour made a decision that parental responsibility for each of the children be given to the CEO until each child reaches the age of 18 years. The mother and the father each filed a separate notice of appeal and each has appealed against the decision on multiple grounds. Those grounds were somewhat refined in oral argument and essentially boiled down to the following contentions.

[7] First it was contended that her Honour erred in failing to take into account a relevant consideration, namely the wishes and views of the children, having regard to their maturity and understanding, as required by s 10(2)(d) of the Act. Her Honour was unable to take these into consideration as they were not properly communicated to her by the children's representative as the children's representative was required to do by s 146(6)(b) of the Act. Both appellants and the CEO agreed that this ground of appeal should be allowed. Only the children's representative disagreed, and it seems to me that there was potentially a conflict of interest in her taking this position. The conduct of the children's representative throughout the course of the proceeding was quite extraordinary - and quite counter-productive.

[8] By the time the matter came before the Chief Magistrate on the adjourned hearing date on 3 October 2011, the CEO was seeking a 12 month order, both parents had agreed to such an order, and the children's representative said:

"Your Honour, I wouldn't oppose a 12 month order. I don't know if that's long enough, but that is what the CEO is seeking and if your honour is minded to make that order I do not oppose that order being made with respect to each of the children."

[9] The children's representative did not have any current instructions from the children as to what their wishes and views on the matter might be. Her Honour requested that the views and wishes of the children be placed before the court in affidavit form, but that was not done.

[10] The matter was adjourned to 17 November 2011 at which time this exchange occurred between her Honour and the children's representative:

"HER HONOUR: I wish to hear from the children's representative last.

MS MORGAN: That's fine your Honour. The only thing I should say and I apologise to my friends and the court. I was to file an affidavit by today with respect to the wishes of the children. I haven't done that because I've been unable to see them. I can indicate to your Honour that hopefully I'll be seeing them next week. And I can indicate that on the last occasion I saw the children the eldest two children particularly did express a wish to go home but the other children didn't express any particular wishes at all, and I do apologise, I haven't been able to see the children and file that. Two of the children I believe have been with the respite carer and the carer didn't want to make arrangements for me to see the children and I've not been able to see the others.

HER HONOUR: So what do you want? How long ago did you see the elder two?

MS MORGAN: I saw all of the children off the top of my head, I think it was June, your Honour. It was some time ago. That's just off the top of my head, your Honour. I'll have to look through my file to find what I did out further. But June or thereabouts. So it's a while ago.

HER HONOUR: Are you asking for the matter to be adjourned for you to formally get those wishes?

MS MORGAN: It depends on what the other - what's going to happen this morning, your Honour. I just wanted to put that before you because I was to file that material today.

HER HONOUR: Well, I was going to give a judgment this morning after hearing from everyone, give a decision.

MS MORGAN: I can proceed without those matters before your Honour. I know what the wishes of the children are. My - I don't believe that would have changed. I can put my view in any event today to your Honour.

HER HONOUR: You've already put your position on the last occasion.

HER HONOUR: That the parental responsibility order to 18.

MS MORGAN: If I hear from - once I hear from the parties I might change my view but that's my view at the moment."[1]

[11] There are a number of quite extraordinary things about the position adopted by the children's representative.

• (a) She came to court purporting to represent the children, but she hadn't seen them for something like 5 months. Although she explained briefly that there had been a difficulty with a respite carer arranging for her to see two of the children, she gave no explanation as to why she had "been unable" to see the others.
• (b) She did not request an adjournment in order to properly perform her function under s 146(6) and to prepare the affidavit that had been requested by the court.
• (c) She said she knew the views of the children, yet on her own account the younger children had expressed no views to her at all, and she knew very little about the views of the two older children, other than that they wanted to go home, expressed to her 5 months earlier. She simply guessed that that would not have changed. She was unable to tell the court anything about the details of their daily care; why they wanted to go home; how they felt about the place they were staying and the people they were staying with; any particular problems or concerns they might have had with their current placement; any particular problems they may have had at home and how they might like to see those addressed; or indeed anything of any particular use.
• (d) While the Act provides that the children's representative must act in the best interests of the child regardless of any instructions from the child,[2] the children's representative does not appear to have sought any instructions at all, and although the older children told her they wanted to go home, she submitted to the court that they should remain in care until they were 18 without explaining why this was in their best interests despite their expressed wishes.
• (e) She submitted that a protection order should be made to age 18 despite apparently having agreed with the CEO and the parents after all the evidence was in, that a 12 month order was appropriate in the best interests of the children. She had also indicated to the court on 3 October 2011, in the exchange set out above, that she would consent to a 12 month order. Nothing relevant could possibly have changed (at least to her knowledge) in the interim: she had not even seen her clients.
• (f) It is quite extraordinary that she would say she might change her mind after she had heard from the other parties. It is the magistrate's function to consider the evidence, listen to the submissions of the parties and make a decision about what is in the best interests of the children taking into account the matters specified in the Act. If that is all that is being done by the children's representative, then it adds no additional value to the proceeding. While everyone exercising a power under the Act (including the children's representative) has a duty to act in the best interests of the children, the principal role of the children's representative, if one is to be appointed, is to present the views and wishes of the children to the Court. In doing so he or she should exercise the powers given in s 146(7) namely:

(b) explain to the child the role of the legal representative;

(c) present evidence to the Court about the best interests, and the views and wishes, of the child;

(d) cross-examine other parties to the proceedings and their witnesses (where appropriate); and

(e) make applications and submissions to the Court for the child.

[12] Counsel for the mother expressed concern that the children's representative had "changed her view on the same body of evidence from agreeing to a 12 month order to supporting an until 18 order" and submitted that the learned Chief Magistrate should have "misgivings" about that. I agree, particularly as the children's representative gave no explanation for the change of position. Reading the transcript one gains the distinct impression that the children's representative was simply reflecting what she perceived to be the leanings of the presiding magistrate.

[13] In my view the appeal must be allowed on this ground.

[14] The appellants second contention was that her Honour adopted the wrong test when deciding what directions to attach to the protection order which all parties were agreed should be made.

[15] Under s 121(1) of the Act:

"(1) The CEO may apply to the Court for a protection order for a child if the CEO reasonably believes:

(ii) would be in need of protection but for the fact that the child is currently in the CEO's care; and

(b) the proposed order is the best means to safeguard the wellbeing of the child."

(i) as proposed by the CEO; or

(ii) specifying other directions mentioned in section 123 as the Court considers appropriate; or

[17] The directions which the court may specify on the making of a protection order as specified in s 123 include a short-term parental responsibility direction giving parental responsibility for the child to a specified person (in this case the CEO) for a specified period not exceeding two years; and a long-term parental responsibility direction giving parental responsibility for the child to a specified person for a specified period that exceeds two years and ends before the child turns 18 years of age.

[18] The principles to be applied by the court in making its determinations under the Act are to be found in sections 7 to 12. Section 6 provides that anyone exercising a power or performing a function under this Act must, as far as practicable, uphold those principles. That means that as well as the court, the CEO is bound by those principles when exercising his (or her) powers under the Act, and the court can and should take cognisance of that.

[19] Those principles include the following.

• (a) When a decision involving a child is made, the best interests of the child are the paramount concern.[3]
• (b) Without limiting that general principle, in determining the best interests of a child consideration should be given to the matters set out in s 10(2). Those include:
  • (1) the capacity and willingness of the child's parents or other family members to care for the child;
  • (2) the nature of the child's relationship with the child's family and other persons who are significant in the child's life; and
  • (3) the wishes and views of the child, having regard to the maturity and understanding of the child.
• (c) 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.[4]
• (d) Decisions involving a child should be made (inter alia) with the informed participation of the child, the child's family and other people who are significant in the child's life.[5]
• (e) When a decision involving a child is made:

(i) should be given adequate information and explanation in a way that the child can understand;

(ii) should be given the opportunity to respond to the proposed decision;

(iii) should be given the opportunity to express the child's wishes and views freely; and

(iv) should be given assistance in expressing those wishes and views; and

(2) those wishes and views should be taken into account, having regard to the child's maturity and understanding.[6]

(f) As far as practicable, and consistent with the best interests of the child being the overriding concern, if a child is removed from the child's family:

• (1) contact between the child and the family should be encouraged and supported; and

• (2) the child should eventually be returned to the family.[7]

(g) Special considerations apply with respect to promoting the wellbeing of Aboriginal children and the considerations set out in s 12 of the Act need to be complied with so far as is practicable.

[20] The appellants contend that rather than asking which of the directions set out in s 123 were in the best interests of the children, having regard to the principles set out in sections 7 to 12, her Honour approached the problem by asking herself whether there was sufficient evidence from which she could be satisfied that the children could safely be returned to the parents within the period of the order sought by the CEO. Then, when she determined that she was not so satisfied, she treated an order to age 18 (the maximum allowed under the Act) as the default position. In other words she wrongly took the view that she should make a protection order to age 18 unless she was satisfied that there was evidence before the court that reunification and return of the children to the parents would be possible within 12 months - that being the length of the order sought by the CEO and supported by the parents.

[21] In my view, on a fair reading of the whole of the transcript, interactions between counsel and the bench, as well as the decision itself, this ground of appeal has likewise been made out. For example, in an exchange between her Honour and counsel for the CEO on 3 October 2011, her Honour said:

"But in being satisfied as to whether a 12 month order is the appropriate order, I need to be satisfied of certain things so I'm asking you where I would get that satisfaction from. Not where the Department will get that satisfaction from after the order's made, but where the court will get that satisfaction from."[8]

[22] In rejecting the CEO's application for a 12 month order on 6 October 2011, her Honour said:

"The issue for the court is whether the order is the best means of safeguarding the wellbeing of the children. That does not mean that the court is being asked to determine today whether the children could be safely returned to their parents, but the court must determine today whether the department's expectation that the children could be safely returned to their parents within 12 months is supported by the evidence before me."[9]

[23] In rejecting the order sought by the CEO her Honour said:

"On the evidence before me, I cannot be satisfied that a 12 month order which will involve the restoration of these children to their parents' care during that period, on the evidence before me, is the best means of safeguarding their wellbeing, as I am not satisfied that there is sufficient evidence from which it can be concluded that the children could safely be returned during that period."[10]

[24] Posing the test, and answering it that way ignores the fact that the CEO has a responsibility under the Act to treat the best interests of the child as the paramount concern in any decision the CEO makes. As counsel for the CEO pointed out at the hearing, the CEO is under a duty not to return the children to the care of the parents if that would not be in their best interests and would not do so.[11]

[25] Contrary to the assertion by her Honour, a 12 month protection order does not involve "the restoration of [the] children to their parents' care during that period". It merely provides an opportunity to the parents to satisfy the CEO that the children should be returned to their care at the end of that period. If things do not go according to plan, and the CEO is not satisfied at the end of the 12 months that it is in the best interests of the children to be returned to the parents, she has a duty under the Act not to return the children automatically, but to apply to the court for an extended protection order. Consequently, the court should not approach an application by the CEO on the basis that it must be satisfied that there is sufficient evidence from which it can be concluded that the children could safely be returned during that period of the order sought. Rather, the court should ask whether making the order sought by the CEO is in the best interests of the children, having regard to the principles in sections 7 to 12 of the Act, including the principles that, as far as practicable, contact between the child and the family should be encouraged and supported and the child should eventually be returned to the family. In practice that will sometimes mean making a short term order to give the parents an opportunity to demonstrate to the CEO that they can properly care for their children and give them an incentive to address issues which have made it necessary for the CEO to seek a protection order for their children. Of course, there may come a time when the need for stability outweighs these other factors. What is in the best interests of the child is a question of fact in every case to be determined on the evidence, and it is not an easy task for magistrates to perform.

[26] In this case, as the appellants submitted, her Honour appears to have assumed that, once it was shown that the children were in need of protection (a fact agreed by all parties), then an order to age 18 should be made (in effect treating that as the default position) unless the CEO or other party adduced sufficient evidence to convince the court that the children could safely be returned during the period of a shorter term order.

[27] Accordingly, this ground of appeal is likewise made out.

[28] In addition to making the protection order with a long term parental responsibility direction, her Honour made an order that the CEO must refrain from moving the children from their current placement unless the CEO gives 28 days prior notice of that intention to the legal representative of the child. The appellants appealed against this order too on the ground that it was an impermissible fetter on the discretion of the CEO and inconsistent with the CEO's parental responsibility for the child. It was rightly conceded by all respondents to the appeal that this contention was correct. The appeal on this ground must also be allowed.

[29] At the hearing of the appeal on 21 and 22 May 2012 I indicated that I was of the view that the appeal should be allowed and that I would publish reasons at a later date. These are those reasons. For the reasons set out above, one of the grounds on which the appeal is allowed is the failure by the learned Chief Magistrate to take into account a relevant consideration, namely the views and wishes of the children, as required by s 10(2)(d) of the Act. It follows that I was unable to determine what orders should be made as that material was not before the court. A suggestion was made that I remit the matters to a differently constituted Local Court. I was not convinced that I had the power to do that: s 143 of the Act provides that on appeal the Supreme Court may: confirm the original decision; vary the original decision; set aside the original decision; or set aside the original decision and replace it with a new order or decision. There is no express power to remit. In any case, in view of the delays that had already occurred, I considered it would be in the best interests of the children to have the matter heard as expeditiously as possible. Accordingly I made directions for the filing of further affidavit material, including an affidavit on the views and wishes of the children, and adjourned the proceedings to 7 June 2012.

[30] The further affidavit material filed included some evidence that the parents' situation had deteriorated since the initial application. As a result, at the adjourned hearing on 7 June 2012 the CEO sought an order that parental responsibility for each of the children be given to the CEO until each child turns 18. The CEO conceded that the parents had demonstrated an ability and willingness to address their problems from June to November 2011. However, an affidavit by an officer of the Department deposed to a number of very concerning matters. One of the children had run away from his carers and had later been found in his father's care, at his work, in an unkempt, dishevelled and withdrawn state. There had been further domestic violence, which resulted in the father spending a week in prison. The father had a poor record of attending meetings with the Department and had discontinued drug screening and neither parent had continued with alcohol and drug counselling. Further, the Department had become involved in another child protection matter involving another of the mother's children who is 14 years old. Officers of the Department had formed the view that the mother lacks insight into the emotional needs of that child and was unable to provide an adequate level of support for her, which raised serious concerns about her capacity to care for the children the subject of this proceeding if they were returned to her care.

[31] The mother filed an affidavit disputing some of the matters raised in the affidavit of the officer of the Department and explaining others. Neither deponent was cross examined, and I was not asked to make any findings of fact about those matters.

[32] From the affidavit filed by the mother and the one filed by the father it was apparent that the parents were no longer a couple. In his affidavit the father said that both he and the mother had been devastated by the order placing their children in care until age 18 and that this had caused further stress in their relationship as they blamed each other. He said he knew that this blaming was not good for either of them or for the children and asked for a chance to fix the mistakes he had made. The father explained in his affidavit that the week he had spent in prison was on remand and that all charges against him had been eventually dismissed. He admitted he had done and said some stupid things to officers of the Department. It does appear that there was for a time a breakdown in what had until then been a co-operative relationship between the parents and the Department.

[33] Importantly, both parents expressed a strong continuing desire to have the children returned to their care and a willingness to continue with counselling and other measures necessary to enable them to be re-united with their children.

[34] An affidavit was filed by the children's representative. Among other things, it deposed that each of the three older children had said they wanted to live with Mum and Dad - one said one week with Mum and one week with Dad. The two younger children had not expressed any views.

[35] Counsel for the father, Mr Wild QC admitted that there had been difficulties but submitted that they were to a large extent caused by the pressure which both parties suffered as a result of the orders made by the Local Court in November 2011. He submitted that I should make a short term order which continues to offer some hope of reunification for the sake of both the children and the parents. He pointed out, correctly, that making such an order would not alter the present arrangements for the children's daily care and submitted that, at worst, if the parents were not successful in following the reunification plan worked out between them and the Department, the CEO would seek a further protection order (short term or long term) and the children would remain in their current situations. There is a great deal of force in this submission. It seems to me that in the present circumstances, the making of a short term protection order does not pose a risk to the well being of the children and would give the parents a chance to demonstrate to the CEO that they were capable of resuming caring for their children. This would promote the objects of the Act, set out above.

[36] Accordingly, I make the following orders.

• (a) The appeal is allowed.
• (b) The orders of the Chief Magistrate are set aside, and in their place I make a protection order with a direction giving parental responsibility for each of the children to the CEO for a period of 2 years.