WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition on publication of identifying information

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Order re adult

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Offence

A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Kitchener Registry No.: 13/02

Date: 2015-02-26

Ontario Court of Justice

Between:

Children's Aid Society of the Regional Municipality of Waterloo, Respondent to the motion for leave

— And —

L.M., Applicant to the motion for leave

Before: Justice Katherine S. Neill

Heard on: 6 February 2015

Reasons for Judgment released on: 26 February 2015

Counsel:

• Jeffrey W. Boich — counsel for the society
• Brigitte Gratl — counsel for mother, L.M.
• Phaedra Klodner — counsel for the Office of the Children's Lawyer

Reasons for Judgment

Introduction

[1] JUSTICE K.S. NEILL:— This matter deals with a motion for leave to bring a status review application brought by the mother, L.M. ("the mother") regarding three children, K.M., born on […] 2001 ("K.M."); A.M., born on […] 2003 ("A.M."); and M.M., born on […] 2006 ("M.M."). K.M. is presently 13 years old, A.M. is almost 12 years old, and M.M. is 8 years old. The children have 3 older siblings who are now adults, being D., who is 24 years old; K., who is 22 years old; and A., who is 20 years old. The mother's partner is M.G. ("M.G.") and has been her partner since in or about 2009 and at the time of the protection trial that commenced in 2010.

[2] On 12 April 2012, the children were made Crown wards. K.M. has been in his present foster placement since July 2009 and A.M. and M.M. reside together and have been in their present foster placement since September, 2008. Pursuant to subsection 65.1(5) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as the children are Crown wards and have been in their present placements for more than 2 years, the mother does not have a right to bring a status review application without leave of the court.

1: History of the Court Proceedings

[3] These children have been the subject of ongoing litigation since March 2008. They were apprehended from the care of their mother on 25 March 2008 and have remained in the care of the society since that time. The trial on the initial amended protection application lasted for 58 days, commencing on 19 May 2010 and ending on 20 May 2011. Although the older siblings, except for D., were initially involved in the litigation, due to their ages at the time of trial, being 16 and 17, the society withdrew its protection application regarding K. and A.

[4] The initial protection trial was separated into two trials. After the first trial, on 12 April 2012, the children were found in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) and clause 37(2)(g) of the Child and Family Services Act, and made Crown wards. After the second trial on the issue of access only, on 5 July 2012, an order was made, among other things, that the mother and the three older siblings shall have supervised access to the children, which access would be decreased if an adoptive home were found for the children, and the possibility of openness could be considered at that time.

[5] The mother appealed the decision of Crown wardship to the Superior Court, which appeal was dismissed on 30 November 2012. The mother also appealed this decision to the Court of Appeal, which appeal was dismissed on 22 May 2013. The Society appealed the decision of access, and pursuant to a written decision of Justice Campbell of the Superior Court dated 10 December 2013, the society's appeal was granted and Justice Campbell made an order for no access. The mother appealed the decision of Justice Campbell to the Court of Appeal, which appeal was abandoned on 14 March 2014.

[6] In the meantime, a kinship placement came forward with an adoption proposal for the children, which was not approved by the society. Therefore, on 10 January 2014, the kin brought an application pursuant to subsection 144(3) of the Act before the Child and Family Services Review Board ("CFSRB") to challenge the society's position. A hearing was held and, on 11 July 2014, the CFSRB dismissed their application. There was no application for judicial review brought regarding this decision, but the society could not place these children for adoption for a period of time, of at least 30 days, pending any application for judicial review.

[7] The mother then brought the present status review application on 3 September 2014 requesting placement of the children with the mother and, in the alternative, access to the children, including temporary access pending a final resolution of the status review application.

[8] Due to the numerous appeals and the application before the CFSRB, the society could not legally place these children for adoption, except for a short period of time for approximately one month between August and September 2014.

2: Background

[9] There is a long history of society involvement with the mother dating back to 1994. The decision of Justice Margaret A. McSorley dated 12 April 2012 on the first trial [Children's Aid Society of Waterloo Region v. Laura M. and Brenda D., 2012 ONCJ 238, 215 A.C.W.S. (3d) 665, [2012] O.J. No. 1835, 2012 Carswell Ont 5305 (Ont. C.J.)] outlines that protection concerns regarding the mother included the state of the mother's home, transience, the mother's multiple partners, lack of supervision, caregiving of the younger children by the older siblings, aggression between the older boys, the children's truancy, the mother's health and its impact on the mother's ability to parent, the special needs of the children and the mother's inability to meet those needs. The mother's home was found to be chaotic, without structure or routine.

[10] When the children came into care, M.M. was 19 months old, A.M. was 5 years old and K.M. was 6 years old. They were all identified with delays in various areas of development and had significant behavioural needs. The mother had not followed through with the recommended and necessary services for the children. At the time of trial, all children were noted to have made gains while in care, but still required constant supervision and structure.

[11] Dr. Kathleen McDermott, a registered psychologist, conducted a parenting capacity assessment on the mother and she testified at trial. Dr. McDermott testified that:

• The mother has a personality disorder and she made decisions based on hysterical impulsivity.

• It is the mother's emotional and characterological makeup that causes her to create unstable and unsafe environments with each decision she makes, which decisions are based on her own needs. For example, two weeks after the children were apprehended, the mother went to Tennessee without informing the society.

• The mother was blind to the chaos in the home when the children were in her care and did not see her part in the chaos. The mother was impulsive, dependent, resentful and not willing to take direction. The mother did not see the need for stability.

• The mother did not take responsibility for many of the problems that her younger children encountered and blamed others for these problems. The mother lacked insight into how these problems developed from her own irrational decision making.

• The mother has interpersonal and emotional issues and her view of the world and how she responds to the world was well ingrained. Dr. McDermott opined that, in order to change, the mother's personality patterns and view of the world, the mother would need a "heap of work".

[12] Dr. McDermott did not recommend returning the children to the mother's care. Justice McSorley found that the totality of the evidence at trial more than supported the conclusions of Dr. McDermott.

[13] Although the mother had engaged in trauma counselling after the apprehension of the children, her counsellor, Ms. Cassel testified at trial that the trauma counselling was related to the mother's car accident. It was clear that this counselling did not address the mother's enduring personality impulsive and histrionic characteristics described by Dr. McDermott. Ms. Cassel had not even seen Dr. McDermott's assessment and stated she did not feel as though she needed to in order to deal with the mother's issues. Therefore, Justice McSorley found that the mother had essentially done no work to address the issues raised by the society or Dr. McDermott. The mother presented letters at trial indicating that she was registered in several parenting programs, but no confirmation that she actually attended and/or completed these programs.

[14] Justice McSorley found that, at that time of trial, the older boys who remained in the care of the mother continued to be out of control and the mother was not able to handle their behaviour or meet their needs. The mother did not participate in any counselling or programs to assist her in parenting teens.

[15] At the time of trial, the mother was more stable and the issues of the cleanliness of the home and transience were no longer concerns. However, Justice McSorley found that these were merely "surface problems" that existed in the mother's life, and the risk of harm to these high needs children was far deeper.

[16] At paragraphs [706] and [710] of her decision of 12 April 2012, Justice McSorley found that:

[706] What is truly unfortunate is that the mother had a lot of time to attempt to remediate her issues. The children were apprehended in March 2008. The trial began in May 2010 and the mother gave evidence in February 2011 and finished her evidence in March 2011. The unfortunate time delay in completing the trial was a perfect time for the mother to work on her issues. However, she was blind to the real issues and as such did no work on them.

[710] . . . when the problems have been as long standing and deep seated as the mother's, work must be done to make those changes.

[17] Justice McSorley found that the children's needs require "more than fun and more than love. The mother loved her children before the apprehension and that love was not enough to keep them safe or to meet their needs".

[18] At the time of trial, the children were in the same placements that they are today. Justice McSorley found that all of the children have developed positive relationships with their foster parents. M.M. did not provide any information regarding his views and preferences, but A.M. indicated a desire to remain with his foster parents, and K.M. expressed a desire to spend time with both his foster parents and his mother. At the trial on the issue of access, Justice McSorley noted that K.M.'s wishes varied, both wanting to remain in his present foster home and wanting to be adopted so he did not have to remain as a foster child forever, and then changing to remain in his present placement until he was 18 years old after which he could return to his mother's care.

3: The Position of the Parties on the Present Motion for Leave

[19] The mother's position is that leave to bring the status review application should be granted as, despite the "no access" order of 10 December 2013, the society has continued to permit access between the children and their older siblings; that the mother has addressed the protection concerns; the mother claims that the children are not doing well in their present placements and articulate that they want to return to the mother's care and that the children have not been placed for adoption.

[20] The mother's request for leave to bring a status review application is opposed by the society and the Office of the Children's Lawyer. The society's position is that the children have significantly improved in foster care; the children do not articulate that they want to return to their mother's care; the mother has not addressed the protection concerns and she is essentially in the same position as she was at the trial; the foster parents of the child, K.M., wish to put forth a plan for custody; and due to the ongoing litigation, the society has not been able to plan for the adoption of A.M. and M.M.

[21] Throughout the trial process and the appeals, the position of Ms. Klodner on behalf of the Office of the Children's Lawyer representing the three children has remained consistent that there should be ongoing contact between the subject children, but no access between the children, and their mother or older siblings. Ms. Klodner advised the court that, in the context of this present motion and pending status review application, a clinical investigator had been appointed for the children but a decision was made not to interview the children regarding their views and preferences pending a decision regarding the motion for leave to bring the status review application.

4: The Law

[22] First, I note that, pursuant to subsection 65.1(7) of the Act, any status review application cannot be brought within 6 months of an appeal of the order under review either being disposed of or abandoned. The mother claims she abandoned her appeal of Justice Campbell's decision on or about 14 March 2014, and commenced this present status review application on 3 September 2014, which does not meet the statutory requirement to enable a person to bring a status review application, even if leave must be granted pursuant to subsection 65.1(4) of the Act. In her factum, the mother states that she brought the motion for leave to bring the status review application after the 6 months had expired, which is not accurate. On that ground alone, the motion for leave could be dismissed. However, I will conduct an analysis whether leave should be granted under subsection 65.1(4) of the Act.

[23] The test to be applied for leave to bring a status review application with respect to a Crown ward pursuant to subsection 65.1(5) of the Act is outlined by Justice Jennifer A. Blishen in C. v. Children's Aid Society of Ottawa-Carleton, 9 R.F.L. (5th) 269, [2000] O.J. No. 2063, 2000 Carswell Ont 1976 (Ont. Fam. Ct.), relying on the previous decisions of Provincial Judge Douglas A. Bean in Catholic Children's Aid Society of Metropolitan Toronto v. Beverley Anne F., [1988] O.J. No. 2950, 1988 Carswell Ont 2213 (Ont. Prov. Ct., Fam. Div.); Provincial Judge Mary Jane Hatton in Debra B. v. Catholic Children's Aid Society of Metropolitan Toronto, 27 A.C.W.S. (3d) 637, [1991] W.D.F.L. 891, [1991] O.J. No. 1128, 1991 Carswell Ont 1478 (Ont. Prov. Div.); and Provincial Judge Lynn King in Catholic Children's Aid Society of Metropolitan Toronto v. Marcella J., 52 A.C.W.S. (3d) 85, [1995] W.D.F.L. 226, 8 O.F.L.R. 176, [1994] O.J. No. 2903, 1994 Carswell Ont 2186 (Ont. Prov. Div.), being as follows:

1. The status review is being brought bona fides;

2. The relief sought cannot be obtained otherwise than reviewing the whole order itself;

3. There is some unusual circumstance that justifies the review, in spite of the child's permanent status;

4. The review will likely accomplish the purposes of the Act set out in section 1;

5. The applicant has established a prima facie case.

[24] The court must be satisfied on all five criteria, not just one of them, on a balance of probabilities. See Catholic Children's Aid Society of Metropolitan Toronto v. Beverley Anne F., supra; and Children's Aid Society of Toronto v. Michelle C. and Kenneth H., 126 A.C.W.S. (3d) 275, [2004] W.D.F.L. 87, [2003] O.J. No. 4017, 2003 Carswell Ont 3944 (Ont. C.J.).

5: Analysis

5.1: Bona Fides

[25] As stated above, a kinship placement put forth a plan to adopt the children, which was refused by the society, resulting in an application before the CFSRB, which was dismissed. The society argued that, as the present status review application was brought shortly after any review period of the decision of the CFSRB expired, there is a concern that this review was brought to create further delays for the children's permanency. The society acknowledged that there was no direct evidence that the mother colluded with CFSRB applicant. The mother denied that she was even aware of the CFSRB proceedings, although only stated this in her factum and did not swear to this fact in her affidavit. Although I cannot find clear proof of an ulterior motive of the mother to bring this status review application, I note that delays for permanency brought by continuous litigation was also a concern of Justice Campbell in his decision of 10 December 2013 regarding the appeal of this matter, wherein the mother was also represented by Ms. Gratl. In that decision, Justice Campbell stated, at paragraph [21], that:

[21] In CAS Hamilton v. C.G. (supra) Pazaratz, J. also identifies that the court process must not jeopardize or delay the legislated adoption process. I agree entirely with that view and attempted to have counsel for the mother respond to the effect that continued access and further litigation (i.e. her declared intent to appeal my order; her intent to apply for an openness order, etc.) would have on the boys while they await the result of same. She was unmoved and entirely unconcerned by the delay for the boys that those legal steps would produce. She focused only on her client's right and (erroneously) on s. 70(3) extensions of time allowed during appeals.

See Children's Aid Society of Waterloo Region v. Laura M. and Adam M., 2013 ONSC 7564, 39 R.F.L. (7th) 154, [2013] O.J. No. 5720, 2013 Carswell Ont 17402 (Ont. S.C.).

[26] However, proving that the status review application is being brought bona fides also means that the mother must provide details of her plan for the children, and that she knows fully, and can deliver what is in the best interests of the children. See C. v. Children's Aid Society of Ottawa-Carleton, supra; and Children's Aid Society of Lanark County and Town of Smith Falls v. P.L., 2012 ONSC 7208, 224 A.C.W.S. (3d) 108, [2013] W.D.F.L. 1946, [2012] O.J. No. 6064, 2012 Carswell Ont 16489 (Ont. Fam. Ct.).

[27] The mother has provided no detail of her plan regarding the children in her affidavit seeking leave to bring the status review application. She has merely stated that the children continue to express a desire to reside with her, as reported to her by her three older children who have continuing contact with the children as arranged through the society. The mother further indicates that the children have suffered while in care, although she provides no details of how they have suffered other than through the information provided by the children's service worker of A.M.'s difficulty with sleep and M.M.'s minor self-harm incidents, and has not had contact with the children in over a year. The mother provides no information regarding any change in her circumstances since the trial in 2011 or any counselling in which she has been involved. Due to her lack of a detailed plan and evidence that she can now provide for the children, I cannot find that the mother's status review application is being brought bona fides.

5.2: Is the Relief Sought Obtainable in Another Way

[28] All parties agree that the relief sought by the mother cannot be obtained other than bringing a status review application.

5.3: Unusual Circumstances

[29] Some improvement in the circumstances of the mother does not constitute an unusual circumstance, particularly where the evidence supports that the children are happy and doing well in their present placements, as it does in this case as outlined below. See C. v. Children's Aid Society of Ottawa-Carleton, supra; Catholic Children's Aid Society of Metropolitan Toronto v. Beverley Anne F., supra; and Children's Aid Society of Lanark County and Town of Smith Falls v. P.L., supra.

[30] The mother argues that the fact that the society has continuously permitted contact between the children and their 3 older siblings despite the "no access" order made on the appeal on 10 December 2013 is an unusual circumstance. It is true that, since the final visit in February 2014, the society has arranged for contact between the children and their older brothers, on approximately a bi-monthly basis in April, June, July and September 2014 to participate in activities together and to attend an awards ceremony for K.M. At the trial on the issue of access, the society was not opposed to intersibling contact, including contact between the three younger children and their older siblings. The society wanted the issue of intersibling access to be silent so that the society could make arrangements for contact between the siblings at their discretion. Even despite the "no access" order made in December 2013, pursuant to subsection 59(4) of the Act, the society is permitted to allow contact between the children and their older siblings if it is in their best interests and no openness or access order is in effect.

[31] The fact that access was been provided to a Crown ward to family members where there is no access order in place has not been found to be an unusual circumstance. See Dilico Anishinabek Family Care v. Marsha T. et al., 2010 ONCJ 105, [2010] 2 C.N.L.R. 136, [2010] O.J. No. 1186, 2010 Carswell Ont 1737 (Ont. C.J.).

5.4: Would the Review Accomplish the Purposes of Section 1 of the Act

[32] Subsection 1(1) of the Act sets out that the paramount purpose of the legislation is to promote the best interests, protection, and well-being of children. It is clear that section 1 of the Act and the time lines outlined in section 70, focus on early permanency planning for children and to avoid delays in litigation.

[33] The evidence is that these children's needs are being met in their present placements, more particularly as outlined below. The onus rests with the mother to prove that she is equally capable to meet the needs of the children to accomplish the purposes in section 1 of the Act. See Children's Aid Society of Toronto v. Michelle C. and Kenneth H., supra.

[34] A child's well-being can be directly and indirectly impacted by the court process and the stress that it causes, and a review will only accomplish the purposes of the Act if there is a reasonable likelihood, based on the evidence filed on the motion for leave, that the outcome proposed by the mother will serve the children's best interests. See Dilico Anishinabek Family Care v. Marsha T. et al., supra.

[35] Looking at all of the factors in section 1 of the Act, it is clear that the protection and well-being of these children can be accomplished by remaining with their present caregivers. Due to the length of time that these children have been with their present foster parents, the "family unit" for the purposes of clause 1(b) has become their foster family unit, and the least disruptive course of action would be to maintain the children in their present placements where they have had a continuity of care and stable relationships. As stated by Judge Bean in Catholic Children's Aid Society of Metropolitan Toronto v. Beverley Anne F., supra, at paragraph [41], "stability ought to be promoted ahead of change, except where change can be truly demonstrated to be in the best interests of the child". I cannot find on the evidence before the court that it would be in the best interests of these children to be disrupted from their present stable placements.

[36] This is similar to the situation in C. v. Children's Aid Society of Ottawa-Carleton, supra, where the children had been in care for over three years and remained in their same foster homes for that period of time and the last access they had with their mother was over one year ago. In that case, Justice Blishen found that the children required "immediate resolution of their status", and that the paramount purpose of the legislation, to promote the best interests, protection and well-being of the children, could not be met by a placement with their mother but through placement for adoption.

5.5: Prima Facie Case

[37] The mother has not established, on a balance of probabilities, that she would likely succeed if the status review application is brought, which is her onus to prove. As the mother is seeking to overturn a permanent order, she must present persuasive evidence. See Children's Aid Society of Toronto v. Michelle C. and Kenneth H., supra.

[38] In her affidavit material, the mother states that the children continue to express desire to reside with her, as expressed to their older siblings during access visits, and that they exhibit extreme behaviours in foster care. She states that K.M. ran away from foster care, but does not state when this occurred. The mother has not had access to the children for approximately one year so does not have information regarding their present situation. The three older siblings filed affidavits on the leave motion and also indicated that the children express a desire to return home, and concerns that A.M. was having "night terrors". In fact, the children's service worker advises that A.M. was not sleeping well, not that he was having "night terrors", and that he is doing well in the foster home. A.M.'s sleep concerns are historical and predate the time that he was in care.

[39] The children's service worker, who has had ongoing contact with the children since the Crown wardship order was made, indicates that the children do not mention their mother or her partner, M.G. The foster parents of A.M. and M.M. advise that neither of the children have spoken of their mother since their final visit in February 2014. Although K.G. initially expressed anger over the decision for Crown wardship, his foster parents advise that he has not spoken of his mother since he was aware that the adoption planning for him was underway. The children's service worker has not heard the children express to their older brothers during access that they want to return home and have not requested this of her. There have been no noted concerns regarding the children's behaviour since January 2014 for K.M., since August 2014 and since in or about April 2014, for M.M. except for a report of self-harm by M.M. in September 2014 where he scratched his face and another incident where he hit himself.

[40] M.M. has advises his worker that he does not wish to leave his present foster placement. M.M.'s behaviour has improved in the past year. M.M. requires less assistance at school and is reportedly working at grade level. The school reports that he appears to be a happy child and participates in all activities. His teacher reports greater signs of self-regulation.

[41] A.M. has also expressed to his worker that he wishes to remain in his present foster placement. A.M.'s behaviour has improved and he is sleeping better than when he initially was brought into care, particularly since July 2014, and he is doing better in school since September 2014.

[42] Both M.M. and A.M. attend Boy Scouts and a community drop-in dodge ball league on a weekly basis. Both boys continue to attend therapy.

[43] K.M. is well attached to his foster family, is involved in competitive swim, attends Boy Scouts and weekly piano lessons. K.M. received a monetary award in June 2014 to permit him to pursue music. In September 2013, K.M. transferred to a special anxiety-based class in school but, as of October 2014, he had fully integrated to regular science and physical education class and is being considered for integration into the music class as well. There have been no reported concerns regarding K.M. as school for the past year.

[44] After an access visits with his older brothers in September 2014, K.M. had a rough day, as he was thrown off when his father dropped off his 2 older brothers for the visit and was worried should this happen again. K.M. advised the worker that he did not want to see his parents and that his mother always lies to him as she told him he would be coming home when he was 12, and that she always wanted him to be sad. In the past year, A.M.'s school has also noted a concern regarding increased behaviour in A.M. following access visits with his older brothers.

[45] It is the position of the society that reinstating access with the mother will interrupt the emotional stability of the children, who have made recent significant gains. I agree with this assessment.

[46] Due to the ongoing litigation, the society has had limited opportunities to profile the children for adoption but, since July 2014, there have been two expressions of interest to adopt the boys. K.M.'s foster parents have put forward a permanent plan requesting legal custody of K.M. and are prepared to make a life-long commitment to K.M., while continuing to support contact between K.M. and all of his siblings.

[47] The mother states that she is now stable and she continues to reside with her partner, M.G., although he works full-time and thus the mother will be primarily responsible for parenting. She claims her relationship with M.G. was in its infancy at the time of trial. However, she had been with M.G. for at least 2 years when the trial ended. Justice McSorley found that the evidence did not show that the mother had ever had a successful period of parenting with a partner or on her own.

[48] The mother argues that she has always had her older children in her care, and this is evidence that she can parent. But as Justice McSorley found at the time of trial, the older siblings who remained in the care of the mother continued to be out of control and the mother was not able to handle their behaviour or meet their needs. It was due to the older siblings' ages at the time of trial that the society withdrew its protection application regarding those siblings. In the case of C. v. Children's Aid Society of Ottawa-Carleton, supra, where the mother sought leave to bring a status review application for her three older children who were made Crown wards, arguing that she had demonstrated that she was able to adequately care for one child who has been returned to her care under a supervision order, the court found that this did not demonstrate that the mother had proven a prima facie case for the return of her older children.

[49] If the decision for Crown wardship was at least partially based on expert psychological or psychiatric evidence of long standing and acute problems with a parent, there would need to be some credible evidence, preferably professional, that the problems have been rectified or are undergoing marked improvement. See D.L.G. v. Family and Children's Services of Kings County, 136 N.S.R. (2d) 131, 388 A.P.R. 131, [1994] N.S.J. No. 657, 1994 Carswell NS 588 (N.S. Fam. Ct.). The mother has presented no evidence to refute the findings of Dr. McDermott. Dr. McDermott found that to change the mother's personality patterns would require a "heap of work". In Justice McSorley's decision of 12 April 2012, she found at paragraph [710] that "when the problems have been as long standing and deep seated as the mother's, work must be done to make those changes". The mother presented no evidence that she had engaged in any form of counselling since the trial that would resolve these protection concerns.

[50] I find that the mother has not proven on a prima facie basis that her status review application would be successful and that her circumstances have improved since the trial. In fact, the evidence supports that the children's circumstances have improved in foster care since February 2014 when they last had contact with their mother.

[51] Therefore, the mother has not satisfied her onus to prove all five legal requirements that leave should be granted to bring a status review application in this matter. Accordingly, I order that the mother's motion for leave to bring a status review application regarding the crown wardship without access order is dismissed.

Released: 26 February 2015

Signed: "Justice Katherine S. Neill"