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What happens if both parents pose an unacceptable risk?

By November 19, 2021February 23rd, 2024No Comments
unacceptable risk

A recent family court case shines a light on the difficulty family court judges sometimes have in looking out for the best interests of children, despite their best efforts to do so. Sometimes, unfortunately, the courts must make a decision on which parent should have custody of the children, but are faced with a situation where neither parent appears to have adequate parental capacity and/or poses an unacceptable risk of harm to the children. And yet, unless state-based child welfare services, such as the Department of Communities and Justice, involve themselves in the case, the family court judges’ hands are basically tied in terms of what they are able to do. At most, it seems, the court can mitigate the risk with various orders such as supervised time, drug and alcohol testing, and other measures. The court cannot, however, simply remove the children from both parents if no-one else has stepped up to seek involvement in their care. So what happens if both parents pose an unacceptable risk to the children?

[What happens if both parents pose an unacceptable risk? continued..]

The case, given the pseudonyms “Palmer & Palmer”, concerned interim parenting arrangements for six children in a context where there are serious concerns over the parental capacity of both parents.

Case background

The parents have 12 children of which one was stillborn, three live with mother, three live with father and the rest were previously removed from the parents’ care but are mostly now adult. These proceedings related to the six children living with the parents. The Department of Communities and Justice (the Department) has parental responsibility for one of the children, although the child is living with the father as arranged with the Department. (No orders could be made in respect of that child as it is subject to the orders under the state welfare jurisdiction of the Department.)

The children have complex medical needs, both intellectual disabilities, physical disabilities and behavioural disorders. There is a history of “compromised parental capacity”.

At this interim stage, the parents had consented to each other retaining care of the three children they each currently have at home. However, the Independent Children’s Lawyer in the matter (ICL) did not support this arrangement, described as “deeply troubling”. The ICL felt there is an unacceptable risk of harm to the children no matter which parent they live or spend time with.

Evidence produced to the court by the ICL shows that there are “issues of risk in the father’s care, being risk of neglect, physical abuse, psychological abuse and risks flowing from alcohol abuse on his part. In the mother’s care risks have been identified as including neglect, physical abuse, psychological abuse and inadequate supervision”.

Involvement of the Department

The Department was invited to join the proceedings but declined, having assessed the children in the mother’s care as “safe with no immediate dangers despite identifying issues then present”. The assessments on the father’s care “did not identify immediate concerns”.

However, against the Department’s assessment are the serious risks identified by the ICL.

For example, one report notes that the father had locked a child in her room overnight without toilet access and was monitoring her with cameras. However, “this report was apparently closed by the Department”.

Other reports noted serious neglect by the mother, including lack of supervision to the extent that one child was found crawling in the street at one stage. However: “again, the investigation of this report was apparently promptly closed by the Department”.

Justifying its position the Department had produced its Risk and Safety Assessments to the family court. But the judge said he had no confidence in their reliability, especially given the above examples of fast closure of reports regarding neglect.

Limitations of family court

Perhaps contrary to public belief, the family court itself is not able to simply remove a child from its parents if both parents are found to be a danger to the child. Instead, the judge noted the family court “is caught between a choice of parents”: 

“Unlike the state welfare jurisdiction, which arises where there is no suitable parent, this Court is not at liberty to place the children under the care of the Department unless the Department joins the proceedings. The court does not have access to the various foster and other arrangements that may be available in state welfare proceedings where neither parent is suitable.”

“Where there is no suitable parent the Court cannot simply compel the joinder of the Department. It may take the step previously taken in the then Federal Circuit Court to invite the Department to join the proceedings. Where, as here, there is a genuine question as to whether there is any suitable parent available it might be expected that the Department would take up such an invitation. In this case the Department has chosen not to join the proceedings.”

The court is therefore limited to choosing how the children’s care should be divided between the parents, and making protective orders in the hope of ensuring the well-being of the children.

The judge noted he was unable to conclude that a different arrangement to the one proposed and agreed by the parents would be better off. As such, orders were made for the children to remain with the parent they currently live with, at least until the final hearing.

Mitigating an unacceptable risk

A suite of injunctive orders were made for the parents to undergo drug and alcohol testing, as well as various restraints on leaving the children unsupervised and physically disciplining the children. The mother’s partner must also provide various undertakings to the court before being able to be around the children.

Other mechanisms to monitor the children’s wellbeing include orders that compel the parents to comply with medical practitioners, therapists and schools. The hope is that the children will have “appropriate contact with mandatory reporters”.

Unusual ‘burden’ on ICL

In this matter the ICL will be heavily involved in information sharing with schools, medical practitioners and therapists. 

“The ICL will also, unusually, be permitted to discuss all matters concerning the children with their various therapists and schools.”

The judge noted that the orders “are atypical and cast a heavy burden on the ICL”. But the judge said the mechanisms were needed to help protect the children from neglect and abuse until the final hearing.

As you can see, the decisions confronting a family court judge can be exceedingly difficult in cases like this. The onus appears to be on the state child protection services, but where the Department refuses to intervene, the family court is left with fairly limited ways to ensure the safety of children who are at an unacceptable risk. Where the criticism often falls on the family court for decisions on parenting arrangements, it seems that on occasion, such as here, it’s the child welfare system that appears to be failing the children.

You can read the above-mentioned judgment in full here.

Do you need help with a parenting or other family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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