Court finds it was wrong for government to take children, five years on

The children were taken away in a police van in "emergency action" in 2013 and subsequently placed under the care of the Community Services director-general until they turned 18.

The mother attempted to be reunited with her children but the director-general fought to have the children remain with their carers. The case was settled in the Children's Court on January 24.

Despite having the mother's permission to tell this story, secrecy provisions are so strict in court cases where Care and Protection is involved this journalist cannot access or report on the child concern reports relied on by the director-general in the Children's Court proceedings, even without identifying the people involved.

The magistrate declined this journalist's request to access the files.

The mother was represented by Blackburn Chambers Barrister Philip Walker SC through the first and second appeal and the final hearings in the Children's Court, and Barrister James Haddock came on board after the first appeal.

Mr Walker said the outcome was a good one.

"The mother received a favourable settlement which she hopes will see her children returned to her in the future," Mr Walker said.

He said before the decision was made to help them return home, at the discretion of the director-general the mother had been reduced to seeing her children just eight hours a year.

The mother initially fought to have all five of the children who were removed returned. The first appeal found one child was not in need of care and should never have been removed.

In the second appeal, three children are ultimately set to be returned to her care.

The children, some of whom court documents identify as of Aboriginal heritage, were taken from their mother, their sole carer, when they were all aged under 13.

Although Aboriginal children account for fewer than 3 per cent of children in Canberra, they make up 28 per cent of children in care.

The children went to three different households including one in NSW.

They have special needs ranging from intellectual disabilities and attention deficit hyperactivity disorder to oppositional defiant disorder.

It was July 10, 2013 when two case workers visited the family home unannounced. The visit ended in the children being removed. The family had been in contact with care and protection workers in the past.

The children were on school holidays, Court of Appeal documents said, and the mother appeared annoyed at the workers as she had just gotten the children to settle. Three children were home, and two others were at camp.

One case worker went to see the children, who she observed had climbed out of the window and onto the roof. One child yelled that his brother was smoking bongs in the garage. A case worker found the mothers 17-year-old son, who was not the subject of these proceedings, in the garage and observed an extremely strong smell of spray deodorant but they did not see any drug paraphernalia.

A case worker told the children on the roof that she would leave if they came down, but they refused. The mother said the children were agitated and were afraid they would be taken away. She said when the police van subsequently arrived to take them away, the children kicked and punched to get away.

"I was crying as I did not know what to do. It happened so fast," the mother said.

"[The case worker] told me that if I can get them off the roof she will leave. When I finally got them down it all happened so fast."

When the other two children returned from camp two days later, they were also removed.

Three months later, final care and protection orders were made which placed all the children under the authority and responsibility of the director-general until they turned 18.

The mother appealed the decision. The appeal was heard by Justice Refshauge over three days in the Supreme Court in April 2015. However, Justice Refshauge didn't hand down his final orders until July 2018.

Justice Refshauge found one of the five children should never have been removed. He ordered the director-general to arrange care and protection assessments for the others - five years after they were taken away from their mother.

The mother appealed again, this time to the ACT's highest court the Court of Appeal, and won.

As the law stands in the ACT, only in "exceptional circumstances" can someone in a case against care and protection have a costs order paid by the government, which means even if the government has taken their children wrongly, the family has to pay the legal costs.

Mr Walker said it should be noted that Justice Refshauge ordered the mother's court costs be paid by the government for the first appeal, and for the second appeal the director-general consented to pay the mothers costs.

A full bench of the Court of Appeal heard the case on August 7, 2018 and made their decision 21 days later.

"It was not demonstrated that the circumstances of that day were other than exceptional," the appeal found.

We do not consider that the finding... that the children were at risk of physical abuse was correct."

The decision went on to say that the formulation of the definition of physical abuse by Justice Refshauge was so broad it would capture the mother allowing the children to go skiing or playing contact sport.

Mr Walker said not one of the grounds for complaint in relation to abuse or neglect stood up in court.

"I have seen the evidence and I cannot tell you what the evidence is," Mr Walker said.

"I've seen what took place in relation to this case and I'm firmly convinced this requires the greatest scrutiny by somebody in a position to pass some judgement on the conduct of the welfare authorities and on the appropriateness of the legislation which keeps their actions secret.

"Frankly it needs to happen quickly so that this doesn't occur for other people in the position of our client in future," he said.

"It is probably just fortunate for this lady that a number of people decided that they would take the case up for her."

ACT minister for children, youth and families and Aboriginal affairs Rachel Stephen-Smith said she could not comment specifically on this case. The response pointed this journalist to a website titled Going to court and working to reunite families.

Minister Stephen-Smith said decisions by case workers were made in the context of professional supervision.

"Ultimately any position arrived at is put before the Childrens Court for a judicial decision," the minister said.

"Only the court can make a Care and Protection Order, and this decision is based on the evidence before it."

"Child and Youth Protection Services has clear and robust quality assurance mechanisms to assure the quality of decision making."