Carers as Parties:Cases and Adoption

22 August 2014Legal Aid NSWCare and Protection Conference

Re June (No. 2) [2013] NSWSC 1111• June born 18 August 2012• Assumed into care shortly after birth• Interim order PR Minster – 28 August 2012• Placed with foster carers – 5 September 2012• Established by consent 21 September 2012• CC report dated 12 December 2012 - recommended restoration• Carers made joinder application (s 98(3)) – refused 26 April 2013

• Final hearing – 24 June 2013• Carers filed affidavit (including psychological report) – gave to ILR• ILR relied on affidavit• DFACS and parents objected• Magistrate rejected affidavit• ILR sought to cross-examine Clinician and father – refused • “… time is of the essence and quite simply, it is in the best interests of June in order to

have this matter solved [sic].”• Final orders made – PR to father

• Carers brought application to SC under parens patriae jurisdiction • Justice McDougall: Magistrate made several errors of law, including:

1. Approach to carers’ affidavit – failed to consider question of relevance or probative value2. Not permitting cross-examination of father 3. Not permitting cross-examination of Clinician

“I accept that it is extremely important that applications such as the one considered by the second Magistrate are dealt with as quickly as is reasonably possible. But … the hearing must be conducted bearing in mind … the paramount objective set out in s 9(1) of the Care and Protection Act.”

• Exceptional circumstances justified the Court’s intervention – CC orders quashed – remitted for determination according to law

Section 87

(1) The Children’s Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children’s Court unless the person has been given an opportunity to be heard on the matter of significant impact.

(2) If the impact of the order is on a group of persons, such as a family, not all members of the group are to be given an opportunity to be heard but only a representative of the group approved by the Children’s Court.

(3) The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings.

• Orders sought by DFACS for restoration of June would have had “significant impact” on carers:- Cared for June virtually her whole life- Psychologist’s evidence of bonding - Told it would be “long term arrangement”- May have come to regard June as their child

• Section 87 applied• Carers had a right to be heard on question of restoration• Not given opportunity in CC

• What does “opportunity to be heard” mean? (Obiter comments)- Limited to “the matter of significant impact” (ie. impact of removal of June)- Does not equate to party status (but may extend to cross-examination)- May be legally represented- Subject to paramount principle s 9(1) - Case-by-case basis - Participation in CCC report not enough (right to be heard by Court, not CCC)- Communicating views to ILR not enough

Implications of Re June?• Obligation on all parties (especially applicant) to ensure compliance with s 87 prior to

orders being made • Increase in carers seeking to be heard?

- Where DFACS proposes restoration - Where DFACS proposes long term PR to Minister (rather than guardianship or adoption)- Where contact order sought- Section 90 proceedings

• Complexity and length of proceedings?• Parents vs carers?