“I wasn’t believed at all with her. It got to a point where she finally did agree for him to come home but that was because she had no reason to say no because I’d done everything… Then when we were at Court on the day of getting restoration, she changed her mind and said no. My lawyer grilled her for two hours on the stand getting her to change her mind again. I still remember him coming to me during lunch going I don’t know which way this is going to go… He grilled her for two hours convincing her that [my son] is best off with his mum, there’s no reason for you to say no. She even said herself it was just a gut feeling and that’s no basis on anything.”
– Parent, Bring Them Home, Keep Them Home research
– Parent, BTHKTH research
This is when the Court orders for a parent or young person to have an independent assessment done on them, to help with making decisions in Court. It can be made independently and on its own (only by application of DCJ), or it can be made as part of care proceedings (Court processes), after a care application has been filed.
Any Party (person) involved in a Court case following a care application being filed, can ask the Court for an assessment to be made. This often ends up being DCJ. The Judge at the Court then has to make a decision if the assessment will be ordered. In deciding whether to make an order for an assessment, the Court has to consider whether the information it is likely to get in the report can be found elsewhere (through services or professionals already involved with the family), and whether the assessment by the Children’s Court Clinic will result in undue delay in making decisions for the child. The Clinic needs an assessment order with clear questions from the Court.
The most common assessment is looking at the ‘parental capacity’ of a parent (section 54 Care Act). This is usually done by a Children’s Court Clinician (CCC). The CCC is who manages the Court-ordered assessments and chooses clinicians.
If the assessment includes a question about your relationship with your child, and this involves the assessor observing you with your child, the Court must include an assessment of your child. A child can also be separately assessed, which can include a physical, psychological, psychiatric or other medical examination. If the assessment is not within the expertise of the Clinic (who are usually social workers, psychologists and psychiatrists), the Clinic should engage another professional to complete the assessment. If the assessment is on your child, the Court has to look at if it will make them distressed and is in their best interests, and if they will get the information they want that can’t be found anywhere else. But they only have to consider this for children, not parents.
A Judge has said “the views of experts in this jurisdiction are really, really important. They’re not determinative but they’re very – they often shape the whole way that the matter will run” (Bring them home, keep them home research). A Children’s Court Clinic assessment is the evidence of the Court, and so unlike other kinds of assessment, a Party (someone involved in the court case) cannot simply choose to ignore the report, or not file it. It is filed directly with the Court for everyone to consider. What the assessor says about you will most likely impact the outcome in Court. If you have a positive assessment, this can be a good thing for restoration. If you have a negative assessment, you can try to ask the Judge to have a second assessment done.
The CCC contacts you to make the appointment. They then arrange the location. The assessment goes for one to two hours.
You may be able to request a support person to attend with you, preferably a community worker who is employed by an ACCO. A Court Clinician may be a social worker, a psychiatrist or a psychologist. They have been trained in non-Indigenous psychology and assessments.
A clinician from the CCC will assess:
Most assessors are members of professional bodies and so they should comply with the ethical guidelines and practices of their profession. They also have to adhere to the Expert Witness Code of Conduct. Community expects independent assessors to be impartial, unbiased, and consider the world views and cultural background of the persons they are assessing. If you don’t think they have conducted themselves this way, let your advocate and lawyer know.
An assessment report based on your assessment will be made by the CCC and given to the Judge. Assessment reports usually take between six and ten weeks to complete from when the Clinic receives the assessment order and all the relevant documents (“the file of documents”). The Clinicians are viewed as independent experts by the Court and can make a big difference in the decisions made in Court.
By law, a parenting capacity assessment can only be used with your “informed consent” (section 54 (2) of the Care Act). You have the right to say no to getting a parenting capacity assessment done. However, speak with your lawyer, advocate and support service to get advice, because DCJ can use you saying no as another way of you not willing to accept there are issues. ‘Informed consent’ means you should be told all of the possible outcomes of the assessment. However, in practice, parents often feel that they don’t have a choice and say yes to the assessment order, because if you don’t you can have your child removed or DCJ might say you are not engaging with them. This is an example of how people in the system use coercion, when they don’t acknowledge that assumption or the anxiety a parent in the system is feeling threatened by the ongoing removal of or separation from their child. Parents often feel powerless in those interactions.
Court clinicians can choose to look at things negatively, or from a Western point of view (embedding assumptions from their non-Aboriginal world views and tools). Parents said:
“They had a clinician come in and then she turned around and put in her report that I relied on [child] and because I was relying on her, that was affecting her as a child. So that’s why it wouldn’t be a good thing for her to go home at that time. How does a grown woman rely on their child in the way that she put it? I relied on her being with me. She was my daughter… I want her home.”
– Parent, Bring Them Home, Keep Them Home research
“It was more that the Court clinician didn’t believe anything that I said… it was a lot of trying to convince her. Even [NGO caseworker] didn’t like her because she came for a visit and she was taking things out of proportion because my son had a stomach ache that day. She was bringing it on that I coached him and everything and changed the situation so that she couldn’t interview him, which is kind of hard to do with an autistic child in general, coaching them to do anything.”
– Parent, Bring Them Home, Keep Them Home research
All other documents that are about the case will be sent to the CCC within five working days after the assessment order is made, but everyone who is a party to the case must agree to the list of documents being sent. These documents might include paediatric, psychological, psychiatric, social work assessments or reports, school reports, previous CCC assessments and hospital discharge summaries that are relevant. You can push back on certain documents being sent to the clinic. You and your lawyer can see the list of documents in the Assessment Application.
Even though Court Clinicians are supposed to be ‘independent’ experts, the CCC gets given a bundle of documents generally written by DCJ, which will include the story they have built about your family. It’s the experience of parents that the assessment doesn’t look at the whole picture, like how you responded to violence, or if you are experiencing poverty. Most Courts prefer parents filing their own material before making an assessment order, and your solicitor can ask for a short adjournment so that you can do this.
Some parents went to an independent psychologist to go against what the Court clinician said. Whilst this was useful for this mum, it’s important to note that most therapy notes can be asked for by the Court (subpoenaed) and used in the Court case, which could be helpful or unhelpful for you depending on your case.
“…that court clinic judged me for that hour where I turned up 15 minutes earlier with a little baby. I organised to make sure she had a high-chair and she had food during lunchtime for my assessment. I made sure they had activities, and she deemed me as being too controlling because I had been organised. Then she wrote down that I was just going to let Chelsea’s dad move into my home once the kids were restored. I fled two hours away. He had no idea where I was. I put all this effort in, and here I have the clinic saying – no words out of my own mouth – that I was going to have him move back with me… My clinical psychologist, the one that I went for independently –ended up saying very strongly in her recommendations that she submitted to court –the kids should never have been removed and they should be back with their mum, and that was her final bit after working with me for six months. Not one hour in a kitchen judging me the way that other woman did. For months, she worked with me.”
– Parent, Bring Them Home, Keep Them Home research
AbSec and our partners acknowledge the Traditional Custodians of Country throughout NSW and their continuing connections to land, waters, and communities. We also acknowledge the lands on which these stories were told, the lands of the Dharawal, Yuin and Wonnarua people.
We acknowledge the Elders, leaders and advocates that have led the way and continue to fight for our children. We also acknowledge the Stolen Generations who never came home and the ongoing impact of government policy and practice on Aboriginal and Torres Strait Islander children, young people and families.
This website shares the experiences and advice of Aboriginal families involved in the NSW child protection system who participated in the Bring Them Home, Keep Them Home research at UNSW. We acknowledge and thank the families who generously gave permission to share their stories.
These experiences reflect what worked for those families and do not constitute advice or views of AbSec. AbSec recommends seeking independent legal advice for your own circumstances.
