Judicial Application of the ‘realistic possibility of restoration’ test in care and protection proceedings in the Children’s Court of New South Wales

Abstract

When children in New South Wales are removed from their parents by the State, and found to be in need of care and protection, the Children’s Court must decide whether there is ‘a realistic possibility of restoration’. The application of this statutory test has profound impact on the lives of the children and parents involved, determining whether a child returns home, or is placed in out-of-home care—often for the rest of their childhood years.

Under the Children and Young Persons (Care and Protection) Act 1998 (NSW) ‘realistic possibility of restoration’ is assessed with regard to the child's circumstances and the likelihood of the parents addressing the issues that led to the child’s removal. Also considered is the paramount concern of the child’s safety, welfare and wellbeing, and the test of ‘unacceptable risk’. Plans for restoration must be sensible, practicable, and not based on merely idealistic or fanciful hopes. There has been no prior research exploring how these abstract guidelines are applied in substance. To fill this gap, this thesis analyses 106 judicial decisions in contested hearings on restoration, supplemented by the perspectives of judicial officers, caseworkers and lawyers who participated in interviews for the study.

The study found a distinct difference between the reasons for children’s initial removal by the statutory authority, which are chiefly externalised, tangible manifestations of risk factors, and the reasons for the Court’s decision on restoration, which are dominated by ‘intrinsic’ themes of parental attitude, insight, capacity to meet the child’s emotional needs, and—particularly strongly evident—the parent’s state of mental health. Yet, dichotomously, the child protection legal process is often counter-productive to parents’ mental wellbeing. The thesis considers practical and policy implications of these findings, alongside interconnected contexts including children’s cultural identity and their wellbeing in out-of-home care.