To Section 90 or not Section 90 ... That is the question

Ms Patricia Hansen* recently produced a report titled "Rescission or Variation of Children's Court Orders: A Study of Section 90 Applications in New South Wales"

Abstract

This article reports on a study of Children's Court files relating to completed applications for variation of care orders (section 90 applications) in three specialised Children's Courts in New South Wales. All files that could be located for completed applications were reviewed and nonidentifying data was recorded. The study attempted to examine the type of applications, the characteristics of applicants and the outcomes of the applications. One hundred and seventeen applications were reviewed: almost half of these were made by the then Department of Community Services (DoCS), and about the same proportion of applications were made by parents. After the section 90 applications were determined there was an increase in care orders allocating parental responsibility to the Minister for Community Services with 73% of the children placed under the care of the minister to age 18.

*Rogers & Hansen, Merrylands, Australia; and School of Social Work, Australian Catholic University, Sydney, Australia

Effects of separation on young children: Implications for family court decision making

Often I have served as an expert witness for parents in family court. Recently, I watched helplessly as the court made a decision I knew would exacerbate, if not cause, child abuse and additional trauma to a two-year-old child. The mother was the primary caregiver, and it was to the mother that the child turned for comfort when in distress. The father was emotionally unstable, which he took out on his wife and daughter. Yet the judge supported placing the girl with her father on a trip to Canada for four weeks. This was much too long a separation from the primary caregiver. Yet the mother’s attorney did not object. Nor did this attorney advocate in court for an expert witness to provide information about attachment research and the effects of visitation schedules on young children, as the mother had requested. This attorney never took the side of the child or showed empathy for her. This attorney and the opposing attorney spoke in private with each other for some time before the hearing began, and during the hearing they focused only on the needs of the parents.

This problem is not new. For decades, judges, attorneys, and even mediators have been making decisions that result in the ill-advised separation of very young children from their parents or other primary caregivers. Usually these decisions are based solely on the needs of the adults involved. Not enough consideration is given to the short- and long-term impact this separation will have on the child. Yet decisions made by courts can have a wide range of deleterious effects.

Effects of Attachment and Separation

Attachment and separation: these elemental forces drive the behaviors and decisions that shape every stage of practice.  Assessment, removal, placement, reunification, adoption—no aspect of child welfare social work is untouched by their influence. This article will describe these forces and provide suggestions for helping children and families understand and cope with them.

Attachment

Attachment is the social and emotional relationship children develop with the significant people in their lives. An infant's first attachment is usually formed with its mother, although in some circumstances another adult can become the primary attachment figure. This may be a father, a grandparent, or an unrelated adult (Caye, et al., 1996).

Attachment is a process made up of interactions between a child and his or her primary caregiver. This process begins at birth, helping the child develop intellectually, organize perceptions, think logically, develop a conscience, become self-reliant, develop coping mechanisms (for stress, frustration, fear, and worry), and form healthy and intimate relationships (Allen, et al., 1983).

Consenting to Establishment

When children are removed on Emergency Orders (without going to court), they (FACS) have to bring the matter to court and explain to the judge why they removed the children, and justify their actions with solid evidence. They can adjourn the matter twice (14 days at a time), but at the end of this time, the Emergency Order cannot be extended and the magistrate must decide whether to throw out the case and dismiss it because of lack of evidence, or to decide that there are grounds and make an interim order and set another date for hearing.

Most legal aid leeches tell their clients to "Consent to Establishment", and their kids will be home in maybe two years, and that if they do not, the kids will never come home. This means that most naive people consent.

Unfortunately what it really means is that you agree that you cannot look after your children properly, and consent to your children being placed under the care of the minister. That means that you are not prepared to fight against the reasons for removal and you agree that you're not a good parent.

It also means that caseworkers do not even have to provide any evidence to the magistrate to show why they removed the children.

What they don't tell you is that in two years, the caseworkers will argue that the children are settled, the children have bonded with the carer, the children do not want to come home etc. That is if you can even get the matter into the court because they've created legislation where now you have to ask permission to bring the proceedings back into the court and most of the time the magistrate says no anyway.