DOHS v Mr & Mrs B 2007 VChC 1

Three children aged 7 years, 5 years and 4 years had been removed from the care of both parents on a short term custody order.  Both parents participated in polysubstance abuse and had other shortcomings.  The child protection department applied for an order for long term guardianship.

The oldest child expressed views about the frequency of contact with the parents, saying that she wanted to decide when to see her parents.  Her counsel stated that she did not understand the distinction between short-term and long-term orders (capacity to decide).

The judge found that a child of 7 years is too young and lacked capacity to be burdened by making decisions about the frequency of access or to have a veto over access arrangements.

Supervision of Child

The mother had participated in supervised access over a period of two years with her three children aged between 7 and 5 years.  The mother had an erratic attendance record at access.  A departmental supervisor expressed concern about a number of observations including: the mother brought activities the children did not participate in (difficult to engage), the mother upset the children by persistently talking about her relationship with a new partner the children did not like (adult topic), the mother handled the children roughly resulting in bruises, the mother yelled at the children, the mother had difficulty engaging all three children at once, the mother ignored the youngest child and focused on the older two children, the mother found it difficult to set firm boundaries for the children, and the mother did not foresee dangers including when near a road and by a duckpond (capacity to protect).

The judge ordered ongoing supervision of access.

Child Protection Court

The judge noted that judges in Children’s Courts make orders involving cases referred by the child protection department, but judges commonly are not involved in decisions about case planning.  Authority to make decisions about children in state care is delegated by legislation to the department, and parents lose this decision-making authority when a custody order is issued.