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Parents lacking capacity

Parents lacking capacity

By Siobhan Mansfield

Capacity Guardianship Litigation 


There is a need for legislative clarity regarding the role and impact of litigation guardians. Vu entered a Thai refugee centre as a child. While there, she was violently raped and became pregnant with her first child, Tien.1 Vu and Tien were accepted into Australia when Tien was four years of age. Two years after their relocation, Vu, with limited English and no family support, contacted an emergency helpline. She was suicidal and required urgent medical help. She was concerned for Tien, who had never been away from her care. Vu was admitted for involuntary treatment to an acute psychiatric unit. While there, she spoke with staff from the Department of Health and Human Services (DHHS). She signed a voluntary agreement which placed Tien in foster care, pending a Protection Application to the Children’s Court. The Protection Application was listed later that week and the Children’s Court ordered that Tien remain in out of home care. Tien was too young to be allocated a lawyer and Vu was not present or represented at court. During the next month, Tien was moved between two foster care placements and only taken to see his mother twice. The application returned to the Children’s Court six weeks after its original listing. At that time, Vu had been discharged for two weeks, was able to attend court and was allocated a duty lawyer. In the six weeks that had passed, six-year-old Tien had deteriorated to such an extent his school recommended immediate psychiatric intervention. Prior to his mother’s admission, Tien had been described by the school as a “happy little boy”. Vu’s lawyer successfully argued for Tien to be returned to his mother’s care.

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