Supreme Court sets aside Interim Accommodation Order, returns child.

Kauthen Legal assisted a client who lodged an appeal to the Supreme Court from a decision by the Children's Court to grant an Interim Accommodation Order (IAO) on the application of the Department of Health and Human Services (DHHS).

The child was in the care of the Grandparents who had looked after the child for over 9 years. DHHS contended that our client's son (who is the child's father) posed a risk to the child following him being released on bail and who was bailed to our client's house.

Our client's child was removed from their home by DHHS Child Protection and placed in the care of the biological mother.

Application of the Children, Youth and Families Act 2005 (Vic) (CYF Act)

The IAO provides for a child viewed by DHHS as at risk to be placed into alternative accommodation.

Section 162 of the CYF Act says that a child is in need of protection where:

• the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type; 
• the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be, significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;

Section 10 says that in granting an IAO, the Court considers the best interests of the child as paramount by considering:

• the need to protect the child from harm;
• to protect their rights; and
• to promote their development must always be considered;
• that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child. 

Allegations by DHHS

In seeking an IAO, DHHS assessed that there was an unacceptable risk of physical and emotional harm to the child and that our client was unlikely to protect the child from this harm.

DHHS made their decision on the following basis:

• that our client did not demonstrate insight into the protective concerns of Child Protection;
• that our client could not provide safe unbiased supervision of the child;
• that Victoria Police shared these concerns.

The decision by the Supreme Court

The Court cited authorities including Secretary to the Department of Health & Human Services v Children’s Court of Victoria that said:

• the likelihood of risk has to be a 'real likelihood'; and
• what will the severity of the consequences be should the risk come to pass.

Furthermore the Court has the power to affirm the the IAO or set it aside and impose a new IAO on alternative conditions in accordance with the best interests of the child.

The Court found for our client and set aside the IAO for the following reasons:

• DHHS had provided information to the Magistrate that imposed the IAO that gave a strong impression for our client's son's guilt - a matter for which he was on bail for;
• Erroneous and scandalous information provided by Victoria Police lacking in any substantiated factual basis;
• Both biological parents have historical convictions that posed a risk of harm to the child;
• There was no real likelihood of exposing the child to physical harm;
• There was no previous record of concern by DHHS with our client in the 9 years she has looked after the child;
• The past intervention demonstrated by our client to minimise the exposure to harm by the child, and has been a moderating influence;
• DHHS failed to serve our client with notice as a party leading to the IAO being heard and determined by the Children's Court in her absence;
• Our client's home was the single stable home of the child since birth.

The conduct of the police is questionable in this case, as was the eagerness of DHHS to accept their information and incorporate it in their reports without any substantiated facts underpinning the information.

The case demonstrates the need for DHHS to be acting on solid facts and not speculation so as to not be viewed as biased toward one party.

To read the case in full: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2020/740.html