1. Child Protection in NSW Variation of care orders Study supported by the Law and Justice Foundation of New South Wales

2. 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.auhttp://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.

3. Care orders Children’s Courts make care orders after application by the Department of Community Services and consideration of evidence Section 79 order allocating parental responsibility Section 79 order allocating parental responsibility Section 86 Contact orders

4. Rescission or variation of contact orders Section 90 Two stage process Children’s Court must first grant leave to make the application If leave is granted then court considers evidence and submissions from all parties before deciding whether to grant application If application is granted new orders may be made Applications may be made by Department, birth family members or other interested parties, S90(3)

5. Leave to make application Leave granted if there has been a significant change in relevant circumstances, S90(2) Leave granted if there has been a significant change in relevant circumstances, S90(2) Factors to be considered nature of the application nature of the application age of child or young person age of child or young person length of time child has been with current carer length of time child has been with current carer plans for the child plans for the child Whether there is an arguable case Whether there is an arguable case S90(2A) S90(2A)

6. Significant change in relevant circumstances Change is defined in relation to factors relevant when final care orders were made Change must be long lasting change, not temporary change Not always change or lack of change in birth parents behaviour May be breakdown of placement or contact arrangements Sometimes it is difficult to see what constitutes the significant change

7. Factors to be considered Nature of the application Age of child or young person Length of time child or young person in care of the present carer Plans for the child Whether there is an arguable case S90(2A)

8. Applicant to prove as if fresh application If application made, or opposed, by the Department If the ground presented in the application has not previously been considered by the Children’s Court Ground must be proved as if it were a fresh application for a care order S 90(5)

9. Factors considered before varying or rescinding care orders Age of child or young person Wishes of the child or young person Length of time child or young person in care of present caregivers Strength of child’s attachments to birth parents and caregivers Capacity of birth parents to parent adequately Risk of harm to child if orders changed S90 (6)

10. Orders If Children’s Court determines to vary or rescind orders it may make any of the range of orders available to it as for a care application S90 (7)

11. Background to S 90 1997: Review of Children (Care and Protection) Act 1987 The plan applications to vary care orders should be made more difficult to prevent unnecessary expenditure and distress caused by uncertainty arising from further litigation applications to vary care orders should be made more difficult to prevent unnecessary expenditure and distress caused by uncertainty arising from further litigation applicant should prove that some changes in the situation warranted a review of existing orders applicant should prove that some changes in the situation warranted a review of existing orders.

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

13. Permanency planning While there is no intention to reduce a parent’s general rights to return to Court to seek custody of their child, the bill seeks to balance the merits of such applications with the general level of distress and instability which is likely to be generated for the child Second reading Speech of Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill (No 2) June 2001 Second reading Speech of Children and Young Persons (Care and Protection) Amendment (Permanency Planning) Bill (No 2) June 2001

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

15. Methodology Exploratory descriptive study of Children’s Court files Purposive sample of one year of s90 applications that were completed in the year of study Attempt to review files of all completed S90 applications in Parramatta, Campbelltown and Bidura Children’s Courts

16. Data Collection Review of files and recording of information on standard data sheets Non identifying information only Attempt to review sample of transcripts of “reasons for decision” not successful Substantial help provided by Children’s Court staff to identify files

17. Issues in data collection No comprehensive electronic data base Some files not available – possible further applications Changes in the Children’s Court at the time – St James, Cobham, & Lidcombe closed, Parramatta opened Some files listed were not section 90 applications for the study period

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

19. Year original orders made Original care orders were made Original care orders were made 1991-1995 6 9.2% 1996-2000 6 9.2% 2001-20053756.9% 20061320.0% Missing 3 4.6% Total65 100.0%

20. Distribution of length of s 90 matters Days between filing and decision Less than 7 days 913.8% 8-30 days1929.2% 31-90 days1523.1% 91-180 days1320.0% 181-365 days 710.8% Missing 2 3.1% Total65100%

21. Number of children Subject of s 90 applications Subject of s 90 applications Male54 55.1% Female44 44.9% Total98100%

22. Indigenous children Subject of s90 applications Male847.0% Female952.9% Twelve (12) families and 19 children identified as Indigenous in the sample

23. Number of children per family 1 child4366.1% 2 children1421.5% 3 children 5 7.7% 4 children 3 4.6% Total65 100%

24. Ages of children MaleFemale MaleFemale Under 1 0 1 1-5 years 17 10 6-10 years 11 13 11-14 years 19 19 Over 14 3 1 Missing 4 0 Total 54 44

25. Who made the s90 application? DoCS4061.5% Mother1218.5% Father 5 7.7% Both parents 4 6.2% Carers 2 3.1% Other 2 3.1% Total65 100%

26. Type of original care orders PR to Minister to 182538.5% PR to Minister, limited1827.7% PR to parent 913.8% PR to other family/friend 913.8% Shared PR/supervision 3 4.5% Missing 1 1.5% Total 65100%

27. Nature of application 1 PR to Minister to 18 2335.4% Contact 1320.0% PR to mother 710.8% Allow overseas travel 4 6.2% PR to family/friend 4 6.2% PR to father 3 4.6% Restore both parents 3 4.6% Change placement 3 4.6%

28. Nature of application 2 Failed undertakings23.1% Supervision order11.5% Rescind DC orders*11.5% Missing11.5% Total 65 100% * Appeal to DC prior to s90 in 2 of the 65 matters

29. Significant change 1 Non compliance undertakings 17 (26.2%) Changes parent behaviour 13 (20%) Placement breakdown 9 (13.8%) Child self placed 5(7.7%) Child travel needs 4 (6.2%) Inadequate parenting 3 (4.6%) Parent change/child wishes 2 (3.1%) Appeal against DC orders 2 (3.1%)

30. Significant change 2 Allege illegal action by DoCS 1 (1.5%) Sibling old enough, carer 1 (1.5%) Death of family carer 1 (1.5%) Child abused in foster care 1 (1.5%) Parent rejects restoration 1 (1.5%) Difficulty finding LT carer 1 (1.5%) Missing 4 (6.2%) Total65 (100%)

31. 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

32. Was application granted? Yes4773.8% Yes4773.8% No1320.0% No1320.0% DoCS consent 1 3.1% Parent consent 3 1.5% Missing 1 1.5% Total 65 100%

33. Outcomes Orders varied4558.5% Orders rescinded 213.8% Application dismissed 1012.3% Application dismissed 1012.3% Application withdrawn 510.8% Application withdrawn 510.8% DoCS withdrew 2 3.1% DoCS withdrew 2 3.1% Missing 1 1.5% Missing 1 1.5% Total 65 100%

34. New orders made PR to Minister to 18(pre 25)36 55.4% PR Minister, time limited (pre 18) 5 7.7% 5 7.7% PR to other family,friends (pre 9) 3 4.6% Shared Minister, family 2 3.1% PR to parents(pre 9) 1 1.5% Supervision order 1 1.5% Missing 1 1.5% Total65100%

35. Regression analysis Dependent variable: application granted Independent variables: application by DoCS, total children per matter, time between original orders and s90 application Significant association between DoCS as applicant and the application being granted Other variables not significantly associated to change of orders or whether application granted p<.01 p<.01

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

37. Implications for policy, practice and research Many birth parents who lose their children grieve for a long time, hope that one day their children will be returned Many birth parents who lose their children grieve for a long time, hope that one day their children will be returned For practitioners it is essential to be honest and clear with birth parents from the outset There should be more services to advocate for and support birth parents and such services should not be funded by DoCS Further research and more open debate is needed about the operation of child protection legislation and procedures