This article is mainly about s90(2A)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which provides that before granting leave to vary or rescind a Care Order, the Children’s Court must take into account the length of time for which the child or young person has been in the care of his or her present carer.
In this context, a Care Order usually means a Final Order allocating parental responsibility, but may also mean an Interim Order made under s69 or s70 of the Act. The scheme of the Act favours permanency, which is demonstrated by the requirement in s83 that the Director-General prepare a “permanency plan” before the court makes a Final Order. Nonetheless, parents may come back to the court later, by way of an application under s90 of the Act, seeking to have the Final Order rescinded or varied. The parents’ objective in these circumstances is usually to have the child or young person returned to their care. The Act does not specify any time limitation for bringing an application under s90, so such an application might be brought very soon after the Final Order has been made or alternatively much later, perhaps years later.
Section 90(1) provides that an Application for the rescission or variation of a Care Order requires the leave of the Children’s Court. In practice, the substantive application and the leave application are usually filed at the same time, typically within a single document, but the substantive application cannot proceed until the Children’s Court has granted leave. Section 90(2) says the court “may grant leave if it appears that there has been a significant change in any relevant circumstances since the Care Order was made or last varied.” The court is also required to take into account the matters stipulated in s90(2A) of the Act, which include the nature of the Application, the child’s age, how long the child has been in his or her present care, the plans for the child, whether the applicant has an arguable case, and matters identified in certain types of reports.
In Re Nerida (2002 CLN 7) the court found that the applicant bears the onus of proving a significant change in relevant circumstances. Moreover, as was found in DOCS v N (2001 CLN 3), “It does not follow that from every change that the Court should revisit a decision which has been made.” Referring to In the Matter of J, K and C (2002 CLN 1) the change must be “one of sufficient significance that if it was to be established, it would cause the court to wish to alter the existing order.” Although the court is required to take all the matters in s90(2A) into consideration, in a particular case some matters may deserve more weight than others. Where a child has moved into a permanent placement, s90(2A)(c) will be particularly relevant. Section 90(2A)(c) is very similar to s90(6)(c), which stipulates matters to be considered when a substantive application is determined. In his judgment of 23 March 2004 relating to In the matter of the Department of Community Services and the “Young” Children (2004 CLN 9) Children’s Magistrate Crawford identified that the consideration required under s90(6)(c) “reflects the benefit of consistency in a child’s upbringing.”
S90(6)(c) was also considered in Re Louise and Belinda  NSWSC 534 in circumstances where there had been some delay arising from court processes, a consequence of which was that the period the children had been in their current placement was accordingly longer than if the delays in question had not occurred. However, the Supreme Court considered that “… His Honour [the District Court Judge] would have been in error, had he attempted to reduce the period for which the children had been in the care of the present carer by deducting from the factually correct three year period such lengths of time as may have been attributable to court delays.” While it was accepted that these delays were not the fault of the mother, whose s90 Application was before the court, the court nonetheless concluded: “It is not a question of fault on the part of the Mother, nor does it matter why the period was as long as it was. What matters (at least in this particular respect) is the length of the period as a fact. Here it was over three years.”
At this point, it is appropriate to record that Justice Forster’s findings in Re Louise and Belinda as to the effect of s9(d) of the Act on a s90 Application were subsequently found to be in error – see Re Tracey  NSWCA 43 at paragraphs 79 and 83 – but that does not detract from Justice Forster’s determination that for the purposes of s90(6)(c), and accordingly also for the purposes of s90(2A)(c), the relevant length of time in the care of the present carer is the “factually correct” period without any adjustment for delays or other factors that might have affected that period.
This is significant, because it lends support to the view that sections 90(2A)(c) and 90(6)(c) are about the child’s perception and the “benefit of consistency” (per Young Children) arising to the child from the actual period.
As a separate matter, in Re Tracey there was considerable reference to the evidence given by psychologist Dr Lennings in the Children’s Court and the District Court. In the Children’s Court judgment – In the Matter of “Chanlina” (2009 CLN 6) – it is recorded that “according to Dr Lennings, if the child was removed from her carers it would be “inevitable that she will suffer severe attachment loss, possibly leading to attachment difficulties later in life.” This would, he thought, “give the child a vulnerability with an increased likelihood of depression/ anxiety should things go wrong in her life.” The Court of Appeal judgment in Re Tracey records that in the District Court Dr Lennings referred to the carer as being the child’s primary attachment figure with “a secure, loving, caring, long term, strong bond which has developed firstly because of the length of time they have lived together and secondly because [the carer] had demonstrated child focussed behaviours.”
The question of attachment is specifically an issue under s90(6)(d) which requires the court, in relation to a substantive application (but not in relation to leave) to consider “the strength of the child or young person’s attachments to the birth parents and the present caregivers.” For the purposes of section 90(2A) the security and consistency afforded the child or young person through a long-term placement is arguably a leave factor in terms of s90(2A)(c). Attachment may also be relevant, to leave, if it goes to whether the applicant has an arguable case – section 90(2A)(e).
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