The following article from the Children’s Court of NSW provides crucial guidance for Funded Service Providers into Children’s Court matters involving the care and protection of children, particularly in relation to restoration:
The Children’s Court is a specialist court which deals with cases brought pursuant to the Children and Young Persons Care and Protection Act 1998 (‘the Care Act’). These are most commonly known as care proceedings.
Approximately 50 per cent of children who are the subject of care proceedings or final orders made in the Children’s Court are now case managed by a Funded Service Provider (FSP). Despite this, it is rare for the FSP to be directly involved in the care proceedings. Rather, it is the Department of Communities and Justice (DCJ) who appears as a party to the proceedings. FSPs can, however, make an application to the Children’s Court to become a party to care proceedings, as it is recognised that the FSP case managing a child has a genuine concern for the safety, welfare and well-being of the child .
Recently, the Children’s Court has noted a disturbing number of cases where FSPs have acted (sometimes with, and sometimes without, the acquiescence or support of DCJ) contrary to orders made by the Children’s Court that have allocated parental responsibility of a child to the Minister to the age of 18. Instead of complying with the Court’s findings and orders, the FSPs involved in these particular cases have commenced, and sometimes completed, the process of restoring the child to his/her parent without first bringing a s90 application or variation. Sadly, what often happens in such cases is that when the application to vary or rescind the final order is finally made, and all the evidence is heard, the restoration plan is refused by the Court because it is not judged to be in the child’s best interest. Not only can such a result create emotional distress for the child, but it can destabilise a permanent placement, and leave the parents and the carers hurt and confused.
It is important to understand that before the Children’s Court can make an order of parental responsibility to the Minister for a child to 18, the Court must:
- Consider all the relevant evidence provided to the Court from DCJ, the parents and the children’s lawyer , often presented in a hearing that is conducted over many days
- Make a finding that restoration of the child to the parent(s) is not a realistic possibility within a reasonable period 
- Consider the Care Plan and Permanency Plan for the child and be satisfied that DCJ either has a suitable permanent placement available for the child, or provides a reasonably clear plan that will meet the child’s needs, including their needs for permanency .
Any party, or indeed any person, who has a sufficient interest in the welfare of the child  can bring an application to vary or rescind the final order of the Children’s Court if there is a significant change in any relevant circumstance .
The Children’s Court has observed an increasing number of cases where FSPs/DCJ have taken substantial steps towards a restoration, which have involved the child, before an application has been filed with the Children’s Court to vary or rescind the care order. These cases have some or all of the following features:
- The child is the subject of a Children’s Court order of parental responsibility to the Minister to 18 (so there must have been a finding by the Children’s Court that restoration to the parents was not a realistic possibility)
- The child is case managed by an FSP and is often, though not always, in a long term placement
- A decision is made to undertake an assessment for restoration, and steps are taken towards restoration which involve the child 
- Substantial steps towards restoration, which involve the child, are taken before an application is made to the Children’s Court to vary or rescind the order.
Restoring a child before the application to vary or rescind has been lodged with the Children’s Court means that child will be in an unauthorised placement. The legislation states that once the Children’s Court has made a finding that there is no realistic possibility of restoring a child to his or her parents, and makes an order accordingly, then the parent cannot be given care responsibility for the child, or be an authorised carer, unless the Children’s Court rescinds that finding .
It has been argued before the Court that if a FSP or DCJ places a child with a parent before the application for a variation and rescission is lodged, and before the Children’s Court rescinds its finding of no realistic possibility of restoration, then that parent is guilty of an offence and subsequently faces a maximum penalty of $22,000 .
Even if a full restoration does not eventuate, taking substantial steps in the restoration process before applying to the Children’s Court can have serious adverse consequences for the child concerned and, all too often, for the carers and parents.
The following two recent cases in the Children’s Court provide a flavour of what can go wrong, and the harm that can be caused to the children and others, when the Children’s Court findings and orders are ignored.
The first case involves Leo, who was born in 2015, and at the time of the case was 4 years old :
Leo was removed from his mother’s care for reasons of domestic violence, as well as his mother’s unstable mental health and drug use. Care proceedings were brought, and the matter was listed before the Court 13 times before the final orders were made. The mother did not attend the Court during this time, nor did she attend a significant number of contact visits with Leo during the course of the care proceedings. In addition she had not addressed the risk issues identified at the beginning of the care proceedings.
The Children’s Court deemed there was no realistic possibility of restoration of Leo to his parents, approved the Care Plan and Permanency Plan that stated Leo was to be placed in an identified long term placement, and made an order of parental responsibility to the Minister until Leo turned 18. The date of that final order was 23 January, 2018. However, the FSP did not agree with the Children’s Court decision, believing that not enough work had been done with the child’s mother to explore restoration.
Less than one month after the Children’s Court had made its final orders, the FSP took a different path. No action was taken to place Leo in a long term placement, and when the matter came back before the Court 15 months later (April 2019) the FSP, with the knowledge and consent of DCJ, was still ‘exploring’ the possibility of restoration (the matter had come back before the Court on an application by Leo’s independent legal representative, who had received a copy of the s82 report  and found that the Care Plan approved by the Court, and the Court’s findings, had been ignored).
Two years after Leo was removed, and more than a year after the Court was told that Leo would soon be moving into an identified long term placement, the FSP had still not decided whether to support a restoration. By this time, there was no identified long term placement available for Leo.
The second case involves Bridget, who was born in 2010, and at the time of the case was 8 years old :
Bridget was removed from her mother’s care due to the unhygienic state of the home, and her mother’s drug use, criminal activity and unstable mental health. During the ensuing care proceedings, the Children’s Court made a finding that there was no realistic possibility of restoration to her mother, and made a final order placing Bridget under the parental responsibility of the Minister until she attained the age of 18 years. In making that order, the Court approved the Care Plan for Bridget providing for long term out-of-home care. The date of that final order was 14 July, 2015.
In September 2016, the mother filed an application to the Children’s Court for restoration of Bridget to her care. This application was dismissed in June 2017.
The FSP did not agree with the Children’s Court decision that there was no realistic possibility of restoration of Bridget to her mother, and began to increase contact between the child and her mother. A report by the FSP discussed ‘potential restoration’ and ‘restoration contact visits’.
The matter came again before the Children’s Court in 2018, when DCJ brought an application seeking restoration of Bridget to her mother. By this time, the FSP was already providing a high level of ‘restoration contact’, and it was conceded that there had been no proper analysis or consideration of the risk issues for Bridget.
Unfortunately, there are many cases where parents have been told by the FSP that their child will be restored and a timeframe provided for restoration and contact increased accordingly, only to have the Children’s Court, after considering all the evidence from all the parties, decide that a restoration to the parent is not in the child’s best interest. FSPs should not make a promise of restoration to a child, or to his/ her parents. The decision to restore rests in the hands of the Children’s Court, and whether or not the evidence presented supports a realistic possibility of restoration to a parent.
In a recent case in regional NSW, two very young children who had been removed from their long term placement were fully restored to their parents by the FSP almost two months before the application to vary or rescind the care proceedings was lodged with the Children’s Court. On the day of the hearing, DCJ acknowledged the children were in an unauthorised placement. As soon as they left the Court, the caseworkers went directly to remove the children from their parents and place them in foster care.
The Children’s Court acknowledges the hard work of FSPs and the difficulties involved in working in the area of child protection. Nothing in this article would suggest that FSPs or DCJ should not undertake restoration assessments after a final order is made, and before a section 90 application to vary or rescind the final order is lodged. The purpose of this article is to seek to ensure that no substantial steps are taken towards restoration, that involve the child, until after the application to vary or rescind the final care order has been filed with the Children’s Court.
In Bridget’s case the Children’s Court stated:
 “Before a decision is made to recommend restoration when a child is in a safe, secure and stable long term placement, there must be a comprehensive assessment undertaken. The Assessment must take account of relevant history, must include gathering of objective evidence and may even require input from experts. It must focus on the best interests of the child and not solely on whether the parent has made progress in addressing the issues that led to the child’s removal.
 If, after the comprehensive assessment a decision is made to recommend restoration then a prompt application should be made to the Children’s Court. No steps should be taken towards restoration that could directly impact the child or the carers. Neither should any assurances or promises be made to the parents or to the child.”
On a related note, ACWA understands that DCJ legal officers are already providing training to Department and NGO caseworkers on important practice issues. Over the next few months, ACWA, DCJ and the Children’s Court will also be settling an agenda for a full day forum that will bring CEOs and senior staff from relevant NGO agencies together to consider some of the core issues that need to be addressed to ensure the delivery of strong and consistent practice in this critical area.
 See s98 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and EC v Secretary, NSW Department of Family and Community Services  NSWSC 226.
 This often involves hearing evidence from DCJ officers, the parents, expert witnesses and other relevant witnesses and considering hundreds or sometimes thousands of pages of documents, including documents from police, interstate child protection agencies, counsellors, treating mental health practitioners, schools and day care centres.
 The term ‘realistic possibility of restoration’ was definedIn the matter of Campbell  NSWSC 761. The concept of realistic possibility of restoration is not to be confused with the mere hope that a parent's situation may improve. The possibility must be 'realistic', that is, it must be real or practical. The possibility must not be fanciful, sentimental or idealistic, or based upon 'unlikely hopes for the future'. It needs to be 'sensible' and 'commonsensical’.
 There are other matters the Court will take into account but these are not relevant to the topic the subject of this article.
 Section 90(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
 Section 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
 Examples of steps taken include, significantly increasing contact, telling the child he/she is going to go home and in some cases has included placing the child back into the full time care of the parent.
 Section 137(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
 Section 136(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
 Department of Family and Community Services and Leo NSWChC. This decision can be found on the Children’s Court of NSW’s website in its publication of Children’s Law News, Volume 1 of 2019.
 A s82 report is a report ordered by a court when making a final order which includes information on the progress in implementing the care plan including progress towards the achievement of a permanent placement.
 Department of Family and Community Services (DFaCS) and Bridget  NSWChC 4. This decision can be found on the Children’s Court of NSW’s website in its publication of Children’s Law News, Volume 1 of 2019.