From an actual case…..BTW, not my particular case. This is CYFS-V-J.

CYFS apply for a S78 nd are intent on removing a boy with serious mental and physical issues which require specialist knowledge to manage and treat.

The s78 is stayed. Later CYFS assert to the Court that a s78 was the wrong mechanisim to use in the case of the boy. Why?

Well, it turns out that only guardians can authorise medical care for a child. A s78 does not give CYFS guardianship, only interim custody.

And so, despite knowing the child had serious issues, of which one in particular could see the child choking to death in under 30 minutes, (a point with which CYFS were made abundantly aware) CYFS were prepared to uplift him. And these are the women the Family Court entrusts with the care of children!

And so, when next you are faced with a s78 you might like to quickly file an application for a stay based upon your child’s medical needs and citing that only you, as guardian can approve any medical care for your child. Naturally, you will have to demonstrate an existing condition which ‘may’ require medical attention.

What I am not sure of (yet) is what the case would be if your child (while in care under a s78) breaks an arm and needs urgent medical care. Only you as guardian can authorise it. Maybe you would if the child was returned to you. I shall discover the answer in due course and report back.

For the record the relevant pleadings from CYFS are as follows.

1. The Chief Executive (CYFS) has obtained an order pursuant to s78 of the CYP Act 1989 (“the Act”) by which the CE hs been granted interim custody of the child.

2. The CE has no guardianship orders in respect of the child in its favour and is unable to obtain guardianship pursuant to s110 of the Act until a declaration is made.

3. A declaration pursuant to s67 of the Act cannot be made until a GFC has taken place and if the conference does not reach agreement, a defended hearing.

4. The s78 Order does not authorise the Cheif Executive to make make guardianship decisions about the child, which in include medical care and counselling.

One to four above are transcripts from court docs.

The question which is wandering around my mind, at the moment is, what ‘other’ guardianship decisions can CYFS not make?

For example, can CYFS ‘decide’ to not allow a child to attend various sports activities expressly authorised by the guardian? Can they? Surely, such would be a guardianship issue.

Can they dictate which school a child attends? Surely, such would be a guardianship decision.

Can they dictate what a child must eat or drink, tooth-brushing frequency, toiletry habits…the list goes on? Surely, a guardianship issue.

But if the real guardian is ill-prepared to cooperate with CYFS, then how can they act? And can the guardian have recourse in the event CYFS apply some measure, expressly reserved for the guardian?

Dunno yet. But I sure as hell intend to find out.

Cheers
David.