Care and protection proceedings are conducted in the Children’s Court of NSW under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘the Care Act’).

The objects of the Care Act, as set out in s 8, are:

The paramountcy principle under which the Care Act is to be administered provides that in any action or decision concerning a particular child, their safety, welfare and well-being is paramount.⁵ This principle prevails over all other considerations, even where it conflicts with the rights or interests of the parents.

Care and protection proceedings in the Children’s Court are conducted in two main stages: the establishment stage and the placement stage.

Establishment is a threshold issue that grounds the court’s continuing jurisdiction in care and protection matters. A final Care order can only be made if the court is satisfied, on the balance of probabilities that the child is in need of care and protection.

It is now well settled law that critical decisions under the Care Act relating to such issues as restoration, contact, parental responsibility and placement, the proper test to be applied is that of “unacceptable risk of harm to the child”, as established in the High Court decision in M v M (1988) 166 CLR 69. Whether there is an unacceptable risk of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard. The High Court held that in applying the unacceptable risk of harm test it is necessary to determine firstly whether a risk of harm exists and, secondly, the magnitude of that risk, as it may be determinative of the issues involved in the particular proceedings.

The unacceptable risk of harm test was applied in the matter of DFaCS Re Eggleton [2016] NSWChC 4 in which I noted at [18]:

The onus of proof in care and protection matters is upon the Secretary. The standard of proof is on the balance of probabilities.⁶ The High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved. Further, the Secretary will not fail to satisfy the burden of proof on the balance of probabilities simply because hypotheses cannot be excluded which, although consistent with innocence, are highly improbable.⁷ This was determined by Sackville AJA in Director-General of Department of Community Services; Re “Sophie” [2008] NSWCA 250 at [67]–[68], where he said:

Once a child or young person has been found to be in need of care and protection, the Secretary of the Department of Family and Community Services must assess whether there is a realistic possibility of the child being restored to his or her parents within a reasonable period of time, not exceeding two years, having regard to the circumstances of the child and any evidence that the parents are likely to be able to satisfactorily address the issues that led to the removal of the child from their care.⁸

The assessment as to whether or not there is a realistic possibility of restoration to a parent involves an important threshold construct which informs the planning that is to be undertaken in respect of any child, and determines whether some other course of action is appropriate, such as placement with a family member or with someone else, in foster care.

The Care Act provides that it is for the Secretary to make the assessment in the first instance. It is then for the court to decide whether to accept that assessment.

In considering whether to accept the Secretary’s assessment, the court must have regard to two matters:

There is no definition of the phrase “realistic possibility of restoration” in the Care Act. However, the principles concerning the interpretation and application of the phrase were comprehensively considered in the NSW Supreme Court by Slattery, J In the matter of Campbell [2011] NSWSC 761.

This decision was cited with approval by the NSW Court of Appeal in Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89. The case law suggests that for a court to make a finding of realistic possibility of restoration 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”.

If the court does not accept the assessment of the Secretary as to restoration, it may direct the Secretary to prepare a different permanency plan.⁹ The Secretary is then required to address the permanency planning for the child in accordance with the decision as to restoration or otherwise.¹⁰

The Care Act confers a unique jurisdiction on the Children’s Court. As Wilson J observed in the High Court in J v Lieschke (1987) 162 CLR 447 at [3] in relation to the Child Welfare Act 1939, “[n]eglect proceedings are truly a creature of statue, neither civil or criminal in nature”.

The Children’s Court has a wide discretion to admit evidence in care and protection proceedings, such as hearsay evidence, that would not be admissible in other courts. Nevertheless, it must draw its conclusions from material that is satisfactory, in the probative sense, so as to avoid decision making that might appear capricious, arbitrary or without foundational material.¹¹

The court is required to examine the sources of evidence, particularly quasi-opinion and secondary evidence, to determine its strength and the weight to be given to it.¹²

The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. In Re T [2004] EWCA Civ 558 at [33], Dame Elizabeth Butler-Sloss P observed:

When considering cases of suspected non-accidental head injury the court will frequently be required to consider and evaluate evidence from experts, particularly medical witnesses. Their evidence is opinion evidence.

Despite the Children’s Court’s broad discretion to admit evidence, in matters concerning expert scientific evidence the court tends to apply the usual rules of evidence relating to expert testimony.¹³

The law sets out a number of specific requirements in respect of opinion evidence.

In Makita (Australia) Pty Ltd v Sprowles Heydon JA, then a justice of the NSWCA, summarised the applicable law in relation to the admissibility of expert evidence:¹⁴

Thus, expert witnesses must exercise their independent professional judgement in relation to issues.

Doctors should not stray outside their area of expertise. For example, a general practitioner should not venture to express a view on a matter of psychiatry, or at least should make clear that the view is based on a limited level of general medical knowledge derived from study or general practice. The expert should clearly set out any written material considered, and all the people consulted with, and specify which aspects of that material were regarded as persuasive in forming the opinion. Medical experts should identify any paper or study they have relied on, and should articulate the reasoning process they have used to come to any opinion or conclusion, and be in a position to defend it.

Expert witnesses in the Children’s Court must comply with the Expert Witness Code of Conduct¹⁵ as set out in the Uniform Civil Procedure Rules 2005.¹⁶

In the matter of SS v Department of Human Services (NSW) [2010] NSWDC 279 an 11-week-old baby, J, was admitted to Mount Druitt Hospital suffering from diarrhoea, fever, lethargy and a rash on his cheeks. Clinical examination revealed multiple problems including seizures, a bulging fontanelle, acute bilateral subdural haemorrhaging and bilateral retinal haemorrhaging. There was no evidence of trauma, either by way of skin damage, or by way of bone fractures.

J was later transferred to the Children’s Hospital at Westmead where he was diagnosed as having sustained brain damage. Subsequently, a notification was made to the Joint Investigation Response Team (JIRT) for investigation and assessment of the cause of his brain damage. Following the investigation, J was assumed into the care of the Minister of the Department of Human Services. J remained at Westmead Hospital until he was transferred to a rehabilitation hospital.

The Department of Human Services filed a Care Plan in the Children’s Court seeking final orders allocating parental responsibility for J to the Minister until he turned 18. The Children’s Court found that it was more likely than not that J’s injuries were caused by non-accidental shaking. The court determined that restoration of J to the parents care involved an unacceptable risk of harm inconsistent with his safety, welfare and well-being, and accordingly, there was a finding of no realistic possibility of restoration.

The parents appealed to the District Court from the orders made by the Children’s Court by way of new hearing and evidence in addition to and in substitution for the evidence on which the orders were made by that court. They contended that the Director-General did not establish, to the relevant evidentiary standard, that care orders should be made. They submitted, therefore, that the appeal should be allowed and the orders of the Children’s Court set aside, with the result that J should be returned to their care.

The outcome of the appeal and the orders were dependent upon the determination of the pivotal issue, that is, whether the brain damage sustained by J was the result of non-accidental shaking by one of the parents.

The parents’ explanation of events in support of their appeal was as follows. According to the mother’s evidence, she found J lying on the lounge one afternoon. She noticed he was pale, lying there drifting off to sleep. The father told her J had not been eating a lot and was not as active as usual. She noticed J make a sudden and quick movement of his head. She picked him up and gave him some water to drink.

The mother noticed he was looking at her in a blank way, and when she clicked her fingers in front of his eyes he didn’t blink. She became concerned and took J to Mount Druitt Hospital.

In support of their appeal, the parents relied upon two overseas medical witnesses, Dr Gabaeff and Dr Gardner.

Dr Gabaeff, a physician practicing in emergency medicine and clinic forensic medicine in the United States, argued that in his opinion, the brain damage suffered by J was the result of meningitis. He disagreed with the studies in the medical literature that identified the diagnostic value of subdural haematoma and retinal haemorrhages, and the absence of signs of impact, as good indicators of inflicted head injuries.

Dr Gardner, a retired ophthalmologist from the United States, further suggested that there were a number of possible alternative causes of the retinal haemorrhages suffered by J, including birth haemorrhages, infections, blood disorders and alterations in intrathoracic, intra-abdominal, intracranial and intravascular pressure.

The Director-General submitted that the parents presented an unacceptable risk of harm to J, and argued that parental responsibility should remain allocated in accordance with the orders of the Children’s Court. The Director-General’s case relied upon the hospital records and the evidence of Dr Stachurska, Dr Hing and Professor Isaacs.

Dr Anna Stachurska, a specialist paediatrician in the Child Protection Unit, and Mr Mark Palmer, the Senior Clinician in the Child Protection Unit at Westmead Hospital, provided the court with J’s initial Assessment Report. The report found no medical condition that could explain J’s presentation. Rather, it pointed towards a finding that J’s injuries were non-accidental: “It is highly concerning that J has significant unexplained injuries, which are indicative of inflicted head injury on more than one occasion (most probably due to shaking)”.²⁴

In providing evidence to the court, Dr Stachurska, reiterated that she was of the view that J’s injury was most likely caused by being shaken. She disagreed with the evidence of the two doctors called by the parents, Dr Gabaeff and Dr Gardner, that an available alternative cause was meningitis.

Dr Hing and Dr Isaacs supported the findings of the initial assessment. Dr Stephen Hing, a medical practitioner specialising in ophthalmology, was of the view that it was extremely likely that J’s brain injury was caused by non-accidental means. He also disagreed with Dr Gabaeff and Dr Gardener that an available alternative cause of the injuries was meningitis. He noted that although retinal haemorrhages can occur from meningitis, they do not look like the severe retinal haemorrhages suffered by J. Further, Professor David Isaacs, a senior staff specialist in General Paediatrics and Paediatric Infectious Diseases at Westmead Children’s Hospital, said that he was almost certain J was severely shaken on several occasions, causing bleeding in the brain and eyes. He also disputed meningitis as a cause.

The determination of the issue of whether the brain damage sustained by J was the result of non-accidental shaking involved a consideration of the competing bodies of medical opinion. The court concluded, at [99], [105]–[106], that it preferred the body of medical evidence presented on behalf of the Director-General rather than the evidence of Dr Gabaeff and Dr Gardener:

The court found that it was satisfied, on the balance of probabilities, that the proximate cause of the brain damage observed following the hospitalisation of J was non-accidental shaking in the previous 24 hours. The only persons who, on the balance of probabilities, were in the available pool of perpetrators, were the parents.

In the matter of Re Lincoln and Raymond [2009] CLN 5, Lincoln, was admitted to Royal Alexandra Hospital for Children at Westmead suffering seizures, a bulging fontanelle and low grade temperature, although there were no external signs of trauma. Further investigations showed Lincoln had bilateral acute haemorrhages, chronic subdural haemorrhages, retinal haemorrhages and extensive bilateral bleeding. There was a subsequent emergency care and protection order which allocated parental responsibility for the child to the Minister pending further order.

The Director-General sought an order that the Minister have parental responsibility of Lincoln until he attained the age of 18 years.

A number of expert witnesses were called on behalf of the Director-General. The overwhelming bulk of medical opinion among those who treated Lincoln or consulted regarding his care was that his injuries were non-accidental and caused by having been shaken without impact to his head.

The parents argued that there was a realistic possibility of restoration to their care. They denied having done anything which may have occasioned Lincoln’s injuries. They suggested that perhaps Lincoln had been suffering from a medical abnormality, such as meningitis, or that a vaccination may have been responsible for his injuries. The parents’ views were supported by Dr Innes, a medical practitioner, who suggested, at [46] that:

The court preferred the evidence presented by the Director-General over that presented by the parents. The Senior Children’s Magistrate came to this conclusion after an analysis of all the presented evidence. He noted at [47]–[48]:

The court concluded that it was more likely than not that Lincoln’s injuries were caused by shaking. Senior Children’s Magistrate Mitchell concluded at [58], [59], on all the evidence, that there was an unacceptable risk of harm to Lincoln:

In the matter of Re Anthony [2008] NSWLC 21, Anthony, then aged 10 weeks, presented at Sydney Children’s Hospital at Randwick. Following a number of investigations, Anthony was found to have both old and new subdural haemorrhages bilaterally, widespread haemorrhages in both his eyes, fractures of multiple ribs and facial bruising.

Anthony’s parents professed themselves to be “bewildered.” Each denied causing any harm to Anthony, and while acknowledging the logical inconsistency of the position, each doubted that the other could have done so.

Following Anthony’s discharge from hospital, he resided, while in the parental responsibility of the Minister, with his maternal grandmother. An application was made by the Director-General to the Children’s Court to place Anthony with his maternal grandmother for a period of five years, and continue to have contact with his parents.

A number of expert witnesses were called by the Director-General and the parents during proceedings before the Children’s Court to determine whether, on the balance of probabilities, Anthony’s parents presented an unacceptable risk of harm. In doing so, it was necessary for the court to ascertain whether on balance, Anthony’s injuries were the result of abuse.

The Director-General relied upon two witnesses, Dr Moran and Dr Tait, from the Sydney Children’s Hospital Network.

Dr Moran reported that “subdural haemorrhages and retinal haemorrhages most usually occur secondary to trauma … of the acceleration-deceleration type, typically caused by shaking with impact”. Further, he suggested that Anthony’s rib fractures were “caused by squeezing of the chest wall … and require a degree of force which is not associated with normal handling”.²⁵

Dr Tait, a Consultant Paediatrician, agreed with Dr Moran that, at 12 months of age, retinal haemorrhages, particularly those involving different layers of the retina as was the case with Anthony, “are rare, and in this age group almost exclusively are the consequence of forceful acceleration/deceleration of the head in association with angular rotation”.²⁶

The parents presented an affidavit of Dr Kalokerinos suggesting that some or perhaps all of Anthony’s injuries may have been a consequence of vitamin C deficiency. The court noted that Dr Kalokerinos’ thesis was not new, and had failed to attract support of the medical profession. Similarly, the theory was not supported by consistent rigorous study and research. Senior Children’s Magistrate Mitchell, while praising Kalokerinos as “a distinguished Australian humanitarian”, held that “his honourable motives do not render his science reliable.”²⁷ The court employed the concept of “general acceptance” and dismissed Dr Kalokerinos’s theory by stating that it had “failed to attract support in the medical profession”.²⁸

The Children’s Court also had the privilege of hearing from Dr Lennings, a clinical and forensic psychologist. Dr Lennings opined that the psycho-social factors often pointing to risk in cases of non-accidental injury to children were absent in the case of Re Anthony. Further, he did not believe that either parent was prone to impulsivity of behaviour, there was no suggestion of personality disorder in either parent and there was an absence of aggression and violence. While Dr Lennings acknowledged that the absence of psycho-social factors was peculiar, as he explained, “human behaviour is unpredictable”.²⁹

Further, the court reflected upon the findings of Kasia Kozlowska and Sue Foley in their paper titled “Attachment and risk of future harm: a case of non-accidental brain injury” published in the Australian and New Zealand Journal of Family Therapy. This paper noted that:³⁰

Kozlowska and Foley argue that an exploration of “perpetrator intentionality” is an important tool for the assessment of future risk but acknowledge that in many cases “understanding the circumstances surrounding the shaking event in order to understand risk is not possible in day-to-day practice”.³¹ The court noted that such a practice is not possible where the identity of the perpetrator is unknown or where the perpetrator is unwilling to speak about the matter, and as such, was not possible in Re Anthony.

In such circumstances, the learned authors acknowledged that the “assumption remains however, that after an alleged incident, there is always ongoing potential for harm, even though the circumstances of the injury may remain unclear” and, for that reason, they argue that the “broader indicators of risk” including parental substance abuse, parental or older sibling mental health examination and history, history of poor impulse control, frustration tolerance, violence between family members, other instances of physical harm or neglect of children, safe physical handling of children, physical discipline practices, parental ability to empathise with children, and parental ability to recognise and meet their children’s needs must be carefully considered.³²

As Stephan Herridge states in “Non-accidental injury in care proceedings — a digest for practitioners” [2009] CLN 6 at 12:

The court in Re Anthony then turned to consider and balance the risks associated with restoration against those in alternate or out-of-home care, at [44]:

The Children’s Court held that to restore Anthony to his parents in the circumstances was an unacceptable risk to his safety, welfare and well-being. Accordingly, the court directed that Anthony should be placed in the parental responsibility of the grandparents.