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What to do when you have been told your children will never be returned - Section 90

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Lukes Dad's picture
on Wed, 05/11/2016 - 15:29
Fight Child Protection Department Corruption: 
What to do when you have been told your children will never be returned Section 90

This will be a collection of information gathered for parents who have been told they will never have their children returned.

Application form for a section 90

 http://www.childrenscourt.justice.nsw.gov.au/Documents/form%203%20application%20for%20recission%20%20variation%20of%20care%20order%20v1.pdf

Star Jameson

Hubby picked up a lot from our first round in court and when my lawyer promised we would win and we did3we told him to appeal immediately but he left it for 3 months before appealing so we couldn't. We decided that hubby would represent us doing the section 90 because things that our lawyer should have said and done, hubby thought he could do and did. We got our then 13yo home. He turns 18 on Friday and have been home with us for 5 years. Best thing we did was represent ourselves but it is not for everyone. I do have to stress that, if you can not handle confrontation then I suggest getting a lawyer but if you have the confidence and ability to represent yourself, then go for it. They will try very hard to make you question yourself and try to say things that aren't true, you need to be prepared for that and the very likely possibility that you get an a$$hole judge/magistrate. Make sure you have everything to back up what you are saying even if you're not sure it is needed, take it anyway. When you put in the section 90, make sure you have all the paperwork to hand in and make sure you have 1 copy for the courts (the original one) a copy for docs lawyer, the children's lawyer and yourself. The courts will keep the original as it goes in their files. If I think of anything else, I will let you know and if you want to talk to hubby just let me know. He has done this twice now and won and we are doing another 2 this year. Good luck

Things have changed and I want my kids back: what can I do?

The Court has made care orders about my kids, what can I do?

If you think things have changed since the Children's Court made orders, you can make an application to the Children's Court for the orders to be changed ('variation') or cancelled ('rescission'). These are called 'section 90' applications. This is different from an 'appeal' - for information on appeals see Booklet 4: The Children's Court made a decision I am unhappy about: what can I do?

A 'variation' or 'rescission' application can be made by anyone who was involved in the original case, the child or young person, or anyone with a sufficient interest in the child's welfare.

If anyone makes an application, you are entitled to be given a copy of the application and to have your say at Court.

Has there been a 'significant change in circumstances'?

The Children's Court will not consider changing an order unless there has been a 'significant change in circumstances'. The Court will look back at the problems that led to the original orders being made and will decide whether things have changed enough to justify changing or cancelling the orders.

The first step: asking for 'leave'

Before you can ask the Court to change or cancel an order, you have to ask the Court to agree to hear the application. This is called 'seeking leave'.

  • The Magistrate will only agree to hear the application if he or she thinks that there have been significant changes since the orders were made.
  • However, a 'significant change in circumstances' is not enough to guarantee that permission will be given. The Magistrate will need to agree that you have an 'arguable case'. This includes looking at your children's age, how long your children have been living with their current carer, and what the plans are for your children's future. Sometimes, even if there have been big changes, these other things might mean that the Magistrate does not give permission.

What do I have to do to get leave?

If you want to apply for leave to change or cancel an order, you will need to file a section 90 application and an 'affidavit'. The affidavit is your evidence about the significant change in circumstances since the final orders were made, and why you say that the Court should give you leave. It is important that you see a lawyer to help you prepare these documents.

What happens if leave is granted?

If the Children's Court gives you permission to bring the application, then the next stage will be for the Magistrate to decide whether or not the final orders should actually be changed or cancelled.

Before changing or cancelling the orders, the Magistrate will consider all of the circumstances including:

  • your children's ages,
  • your children's wishes,
  • how long your children have been in their current placement,
  • your children's relationship with you and the other people important to them, including their current carers,
  • your capacity to care for your children, and
  • the psychological effect on your children of changing their current care arrangements.

What kind of evidence do I need?

The Magistrate will consider what has happened since the orders were made, and what changes you have made.

You will need to set out in your affidavit the reasons why the Magistrate should make the orders you are seeking, including:

  • what you have done differently since your children were removed from your care,
  • how your children have been doing since they were removed,
  • what contact you have had with your children, and
  • what your plans are for the children if the Court makes the orders you are seeking.

Your case might be helped by evidence from people or organisations you have been working with to address your previous child protection issues, such as:

  • letters from doctors, counsellors or social workers about how well you are doing, including how often you have been attending these services,
  • certificates from parenting classes you have attended, and
  • certificates for any drug or alcohol treatment programs you have completed.

Sometimes the people who provide these letters or certificates may be asked to give evidence in the proceedings.

Will I have to go to a hearing?

You will be given a chance to go to a confidential meeting called an 'alternative dispute resolution' or 'dispute resolution conference' to see if you can reach agreement with Community Services and the other parties about your children.

If all the parties cannot reach agreement, then there will need to be a hearing. You and the other parties will need to give evidence, and everyone will have a chance to tell the Magistrate what they say should happen. The Magistrate will then make the decision which the Magistrate believes is in the best interests of your children.

For more information about hearings and agreements, see Booklet 2: Going to the Children's Court.

Can I get a lawyer?

Legal Aid NSW may be able to help you make a section 90 application. To be granted legal aid, you will need to show that you meet Legal Aid's 'means test' (that you are within the income and assets limits), and Legal Aid's 'merits test' (that your case has a reasonable prospect of success). If you do not qualify for legal aid, you may choose to pay a lawyer privately to represent you, or represent yourself.

Finding a lawyer

You can find a lawyer by contacting:

Further court proceedings

While final orders are final, there are some legal avenues still open to parents.

Appeals

  • If a parent disagrees with the decision of the Children’s Court then they are able to appeal to the District Court.
  • Any such appeal is required to be made within 28 days.
  • If a parent wants to appeal, it is important they seek legal advice as to their prospects of success.

Tips:

  • Some parents want to appeal final orders because they do not want to be seen to be “giving up on their child”. It can also be part of their way of handling loss and grief.
  • If a parent is demanding an appeal straight after final orders have been made, it is best to suggest they take a few days to let things settle down before making a time to see a lawyer.

Section 90 application

Most parents involved in care proceedings will soon hear about Section 90 applications. Section 90 of the Act outlines how a care matter can be revisited by the court.

Basically, Section 90 enables anyone who has a genuine interest in a child to bring a matter back to court to have the care matter re-opened, and the court’s original orders revoked or varied. Section 90 enables a birth parent, who has made significant changes in his or her life and circumstances, to request the court to review whether or not there is a realistic possibility of his or her child being restored into their care.

Often parents will hold on to a Section 90 application as their chance to have their child restored. The most important thing to know about making a Section 90 application is that the parent needs to be able to show that there are now significant and sustainable changes in his or her circumstances.

Tip:
There are two windows of opportunity to apply for a Section 90:
(1) post final orders (usually 12-18 months afterwards), or
(2) if Community Services is making a Section 90 application – that is to have the orders changed. This may be the case if the child’s placement has broken down and they want to have parental responsibility changed.

Legal Aid is not automatically granted for section 90 applications. Legal Aid will only approve a grant of aid if there is, on the papers, a good chance of the case succeeding. Even if the parent can get a lawyer to take on his or her case the lawyer has to apply to the court to be granted leave to put forward a Section 90 application. The court does not automatically grant leave for a Section 90. The court has to be convinced that it is in the child’s best interest.

Tip:
If a parent states that it is their intent in the future, or they now want to apply for a Section 90:
(1) Suggest the parent seeks legal advice. A lawyer will look at the previous court documents to identify the issues cited by the court as to why it was found that there was no realistic possibility of restoration.
(2) The parent will have to have addressed these issues and show that the changes made are sustainable

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SECT 90
Rescission and variation of care orders
90 Rescission and variation of care orders
(1) An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.
(1A) Subject to any order the Children’s Court may make, a person who makes an application under this section must give notice of the application to the persons who were parties to the proceedings in which the care order was made.
Note : Section 256A sets out the circumstances in which the Children’s Court may dispense with the requirement to give notice.
(2) The Children’s 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.
(2A) Before granting leave to vary or rescind the care order, the Children’s Court must take the following matters into consideration:
(a) the nature of the application, and
(b) the age of the child or young person, and
(c) the length of time for which the child or young person has been in the care of the present carer, and
(d) the plans for the child, and
(e) whether the applicant has an arguable case, and
(f) matters concerning the care and protection of the child or young person that are identified in:
(i) a report under section 82, or
(ii) a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.
(3) An application may be made by:
(a) the Secretary, or
(b1) the child or young person, or
(c) a person having parental responsibility for the child or young person, or
(d) a person from whom parental responsibility for the child or young person has been removed, or
(e) any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person.
(3A) If:
(a) an application is made to the Children’s Court by a person or persons (other than the Secretary) for the rescission or variation of a care order (other than a contact order) in relation to a child or young person, and
(b) the application seeks to change the parental responsibility for the child or young person, or those aspects of parental responsibility involved in having care responsibility for the child or young person, and
(c) the Secretary is not a party to the proceedings,
the applicant must notify the Secretary of the application, and the Secretary is entitled to be a party to the application.
(4) The Children’s Court is not required to hear or determine an application made to it with respect to a child or young person by a person referred to in subsection (3) (e) unless it considers the person to have a sufficient interest in the welfare of the child or young person.
(5) If:
(a) an application for variation of a care order is made or opposed by the Secretary, and
(b) a ground on which the application is made or opposed is a ground that has not previously been considered by the Children’s Court,
the ground must be proved as if it were a ground of a fresh application, or of opposition to a fresh application, for a care order.
(6) Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:
(a) the age of the child or young person,
(b) the wishes of the child or young person and the weight to be given to those wishes,
(c) the length of time the child or young person has been in the care of the present caregivers,
(d) the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,
(e) the capacity of the birth parents to provide an adequate standard of care for the child or young person,
(f) the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.
(7) If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:
(a) it may, by order, vary or rescind an order for the care and protection of the child or young person, and
(b) if it rescinds such an order-it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.
(8) On the making of an order under subsection (7), the Children’s Court must cause notice of the order to be served on the Secretary.

Here is the advice from NSW solicitors.

To quote:

If you have an 18 year court order under the Care of the Minister.

The order is final until the child turns 18.

A 12 year old child is considered a change of circumstance. That is because a 12 year old child, gets to have a "Child Representative" this is your child's independant children's lawyer. The child can inform her or his solicitor that "they would like to go home now, thanks". If appropriate, and this must be considered by the court.

Under the current guidelines each case is different and is dependant on situational factors.

There are two things that can happen:

1. Restoration: This is a plan from DoCS that is supporting the child in going home to live with the parents. That plan will be based on circumstances, DoCS may decide you don't need them anymore or that they might need to continue to support your family in some way but basically the kids are going home. The Minister decides if they will approve restoration.

2. Application Section 90. (S.90) This is the application to the court where a parent can prove that their circumstances have changed and they are capable now to look after their children. In a S.90 you can be self representing however you must prove a lifestyle change that will compliment your child, and show that any issues have been resolved. You would know from your previous affidavits what you need to address.

Furthermore:

There are situational times when DoCS will cease proceedings.

When a child has reached the age of 12, they can self place, however DoCS may still remove a child that they see as at risk of danger in the home, even at 12. As the child grows older into the teens, if they continue to self place, DoCS loose interest and agree to the child's wishes. Remembering of course, that this is situational advice, they can still have the child removed from the home at all times. Unless, a S.90 or Restorative Order has been approved. These Childrens Court Matters depends on case to case, situational circumstances.

An Order under the Care of the Minister is Final, and unless you take it to court and take responsibility for your child, and gain the full parental rights to your child back into your name, the child remains the legal guardian of the Minister. This is what is meant by the legal term "under the Care and Protection of the Minister for Family and Community Services"