Carseldine v Director of Department of Children's Services

[1974] HCA 33

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Stephen and Mason JJ.

CARSELDINE v. DIRECTOR OF DEPARTMENT OF CHILDREN'S SERVICES

(1974) 133 CLR 345

19 September 1974

Infants and Children

Infants and Children—Custody—Jurisdiction of Court—Wards of Court—Children in care—Children's Services Act, 1965-1973 (Q.), ss. 47, 49, 55, 58, 64—Rules of the Supreme Court (Q.), O. 76, r. 1.* * The relevant part of O. 76, r. 1, of the Rules of the Supreme Court of Queensland is set out in the judgment of Menzies J., 133CLR345, at p357.

Decisions

September 19.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared for delivery in this matter by my brother Mason. I agree with his conclusion that the inherent jurisdiction of the Supreme Court of Queensland to make an order as to the custody of an infant is not displaced by ss. 47, 55 and 58 of The Children's Services Act, 1965-1973 (Q.), or by the action taken by the Director of the Department of Children's Services under s. 47 of that Act. I agree entirely with the reasons which my brother gives for that conclusion. In my opinion, the Supreme Court of Queensland did not lack jurisdiction to entertain the application made in this case by the appellants, such application being regarded as having been brought on behalf of the infant children. I also agree with my brother's reasons in this respect and with his concurrence with the reasons and judgment of Wanstall J. in Re L. (An Infant) (1958) Qd R 489 . (at p348)

2. I would allow the appeal and remit the application to the Supreme Court of Queensland for hearing. (at p348)

McTIERNAN J. This appeal is from a judgment of the Full Court of the Supreme Court of Queensland dismissing an appeal from a decision of Andrews J. The matter involves a consideration of The Children's Services Act, 1965-1973 (Q.). It is an application by the appellants for custody of four children, of whom the appellants are the maternal grandparents. The appellants issued out of the Supreme Court of Queensland an originating summons seeking an order for the custody of the children, naming the children's mother (the appellants' daughter) as the respondent to the summons. Andrews J. made an interim order giving custody of the children to the appellants and adjourned the hearing of the summons. The present respondent Director applied by notice of motion to have the interim order set aside on the ground that Andrews J. had no jurisdiction to make the order, since, following an application under s. 47 of The Children's Services Act, 1965-1973 made by their mother, and a declaration by the Director under that section the children had been admitted to the care and protection of the Director and continued to be under his care and protection. Andrews J. held that in those circumstances he had no jurisdiction to make an order granting custody of the children to the appellants and on appeal to the Full Court his decision was affirmed. (at p349)

2. From the evidence, it appears that an application to have the children admitted to the care and protection of the Director was made by the mother under s. 47 of the Act and a declaration to that effect was made by the Director in April of 1970. The children had been placed in an orphanage, Nazareth House, Wynnum and the appellants had been granted access by the Director in March 1972. Then in July 1972 the Director found the appellants to be fit and proper persons to be foster parents of the children and until August 1973 the children lived with the appellants. In August 1973 the Director ordered that the children be permitted to spend their holidays with their mother. However, on 15th September the appellants took the children from their mother and brought them to their (the appellants') home. It would appear from the evidence that they did this because of their concern about the dangers to the health and morals of the children while living in their mother's house. On 24th September the Director had the children returned to their mother's home, claiming that since April 1970 the children had been under his care and protection and that the appellants' action had been contrary to the Act. Following these events, the appellants took out the summons applying for custody which is the subject of these proceedings. (at p349)

3. No allegation was made before us of any supervening unfitness of the appellants to have custody of the children. However, a strong case based on ample evidence that the mother was not a fit guardian was put before us in argument. (at p349)

4. It would seem from the evidence that the father of the children had deserted them and their mother permanently. (at p350)

5. The essential point which arises on appeal is the question of whether or not the provisions of The Children's Services Act, 1965-1973 take away jurisdiction of the Supreme Court of Queensland to make orders for custody. The Supreme Court of Queensland was invested with such jurisdiction as part of its equitable jurisdiction by s. 22 of the Supreme Court Act, 1867 (Q.). Section 22 reads:

"The said court shall have equitable jurisdiction within the said colony of Queensland and its dependencies and such power and authority to do exercise and perform all acts matters and things necessary for the due execution of such equitable jurisdiction as is possessed by the Lord High Chancellor or other equity judges of England in the exercise of similar jurisdiction within the realm of England and also to do all such other acts matters and things as can and may be done by the said Lord High Chancellor or other equity judges within the realm of England in the exercise of the common law jurisdiction to him belonging and to appoint guardians and committees of the persons and estates of infants and of natural-born fools lunatics and persons deprived of understanding and reason by the act of God and unable to govern themselves or their estates and for that purpose to inquire into hear and determine by inspection of the person the subject of such inquiry or by examination on oath or otherwise of the party in whose custody or charge such person may be or of any other person or persons or by such other ways and means by which the truth may be best discovered and to act in all cases whatsoever as fully and amply to all intents and purposes as the said Lord High Chancellor or other equity judges or the grantee from the Crown of the persons and estates of infants and lunatics natural-born fools and persons deprived of understanding as aforesaid may now lawfully do."

I would interpret the term "infant" in its legal sense for the purposes of this provision. Of this equitable jurisdiction Professor Holdsworth wrote in his History of English Law, vol. VI, p. 648:

"The equitable control over infants, and the guardians of infants, arose in its modern form after the abolition of the military tenures, and the court of Wards and Liveries. The equitable jurisdiction was based, it is said, not on any inherent jurisdiction, but upon a special delegation by the crown of its prerogative right, as parens patriae, of looking after their interests. In 1696, in the case of Falkland v. Bertie (per Lord Somers L.C. (1696) 2 Vern 333, at p342 (23 ER 814, at p 818) ), it was said, 'In this court there were several things that belonged to the king as pater patriae, and fell under the care and direction of this court, as charities, infants, idiots, lunatics, etc. Afterwards such of them as were of profit and advantage to the king were removed to the Court of Wards by the statute; but upon the dissolution of that court, came back again to the Chancery.' This view has generally been accepted as the origin of this jurisdiction of the court...." (at p351)

6. Referring to the nature of this jurisdiction Kay L.J. said in Reg. v. Gyngall (1893) 2 QB 232, at p 248 , "it is essentially a parental jurisdiction, and that description of it involves that the main consideration to be acted upon in its exercise is the benefit or welfare of the child". (at p351)

7. The material part of the long title of The Children's Services Act, 1965-1973 is "An Act to Promote, Safeguard and Protect the well-being of the Children and Youth of the State through a Comprehensive and Co-ordinated Programme of Child and Family Welfare ..." Lord Moulton said in Vacher &Sons, Ltd. v. London Society of Compositors (1913) AC 107, at p 128 : "The title of an Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of interpreting the Act as a whole and ascertaining its scope." I do not find in the title of The Children's Services Act, or in the body of the Act, any indication that the amendment or repeal of s. 22 of the Supreme Court Act, 1867 was within the contemplation of the legislature. Reading the whole of the Act I do not think that the jurisdiction and power conferred thereby on the Children's Court and the Director are intended to supplant entirely the Supreme Court in its equitable jurisdiction. I consider that the Act intends to supplement such jurisdiction in the way provided therein. (at p351)

8. As the equitable jurisdiction of the Supreme Court derives from a delegation of the prerogative of the Crown to the Court, that jurisdiction could only be taken away by a statute, if the statute does so expressly or by necessary implication. Indeed s. 13 of the Acts Interpretation Act, 1954-1970 (Q.) provides, "No Act hereafter passed shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose". In my judgment there is no such express intention in The Children's Services Act nor is any such intention to be implied of necessity from the whole scheme of the Act. (at p351)

9. Section 47 of The Children's Services Act, 1965-1973 (Q.) is in the following terms:

"(1) An application may be made to the Director in or to the effect of the prescribed form to admit any child to his care and protection by any of the following persons:- (a) a parent of such child; (b) a guardian of such child; (c) a relative of such child; (d) a person of good repute. Upon receipt of such an application the Director shall make such inquiry and investigation as he considers necessary and shall hear all objections made to him concerning such application. (2) If the Director is satisfied that the child in respect of whom such an application is made is in need of care and protection and that such care and protection cannot be secured to such child by the giving of assistance under Part V of this Act he shall by writing under his hand declare such child to be admitted to his care and protection. Such declaration shall be sufficient authority for any person acting on behalf of the Director at any time while such declaration continues in force to take the child in care into his custody and to deliver such child in care to such place as the Director, from time to time directs, and for the person in charge of any such place to receive and keep the child in care until such child in care is otherwise lawfully dealt with. (3) No provision of this section shall be construed to render it mandatory upon the Director to take any child into his custody." (at p352)

10. It was suggested in argument that the case of Minister for the Interior v. Neyens (1964) 113 CLR 411 , a case which involved the Child Welfare Ordinance 1957 (A.C.T.), was a precedent on which to decide the question of jurisdiction in the present case adversely to the appellant. In my view, the relevant provisions of that Ordinance differ materially from s. 47 of the Queensland statute. Section 19 of the Ordinance by its terms states that "the Minister is the guardian of a child or young person who is a ward", "notwithstanding any other law of the Territory relating to the guardianship or custody of children or young persons". I find nothing in s. 47 of The Children's Services Act, 1965-1973 or in any part of the Act to indicate that its provisions are to take any precedence over existing laws relating to custody or guardianship or over the Supreme Court's equitable jurisdiction in particular. Indeed, s. 102 in Pt IX of the Act suggests the contrary. Section 102 reads:

"No provision of this Part shall be construed to restrict or prejudice the jurisdiction of the Supreme Court of Queensland to appoint and remove guardians or otherwise in relation to infants."

As was said by Barwick C.J. in Minister for the Interior v. Neyens (1964) 113 CLR, at p 419 the jurisdiction said to be displaced "ought only to be treated as lost or withdrawn where this is done expressly or by necessary, indeed inescapable, implication". In my view the equitable jurisdiction of the Supreme Court of Queensland in custody and guardianship matters affecting infants is preserved by The Children's Services Act to the extent that it is not necessarily inconsistent with the provisions of the Act. The Act does not presume to cover the whole field of the law relating to custody and guardianship of infants. (at p353)

11. I would allow the appeal and would order that the matter be remitted to the Supreme Court of Queensland for the determination of the appellants' application for custody of the children. (at p353)

MENZIES J. Donald and Violet Carseldine, the father and mother of Jean O'Brien and the grandparents of her infant children, Mary aged eleven, Donna aged ten, Michelle aged nine and Erin aged seven, commenced proceedings in the Supreme Court of Queensland against Jean O'Brien seeking the custody of her children. The originating summons was, it seems, taken out pursuant to an undertaking given upon the hearing of an ex parte application made to the court by the grandparents, upon which an interim order was made giving them custody of the infants and directing service of the proceedings upon the Director of the Department of Children's Services (Queensland). The Director moved to set aside this order. The summons and the motion to set aside the order were heard by Andrews J. who rescinded the order for interim custody and dismissed the grandparents' application for custody. The Full Court dismissed an appeal from these orders and this appeal has, by special leave, been brought to this Court against that order of the Full Court. (at p353)

2. Nothing is known about the father of the infants beyond that he disappeared in 1968. (at p353)

3. The infants were, upon the application of the mother, admitted to the care and protection of the Director, pursuant to s. 47 of The Children's Services Act, 1965-1973 (Q.), on 14th April 1970 and have since so remained. (at p353)

4. The grounds for the grandparents' application for custody were supported by an affidavit of Violet Carseldine alleging that Jean O'Brien's home at 57 Everest Street, Sunnybank, was no place for the infants. It is a house in which it is deposed that she lives in drunkenness, squalor and strife with a man called Parsons who joined her when her husband left her. It is alleged that Parsons assaulted the infants. The children, it was said, were in other ways ill-treated by their mother and Parsons, and left hungry and uncared for. (at p354)

5. The infants, who had been in an orphanage run by the Catholic Church, were, with the consent of the Director, in the custody of the grandparents from June 1972 to August 1973. During this time they lived comfortably in the grandparents' home at Southport from which they attended the Labrador State School where they did well. The house, it is said, is a fourteen square house with land upon which the children can play. The grandparents are in modest circumstances and during the time the children were with them received a fostering allowance of $68.00 per fortnight. It is apparent that the grandparents are concerned about the welfare of their grandchildren. (at p354)

6. In August 1973 Donna and Michelle were, with the authority of the Director, escorted from the home of the grandparents to the home of their mother, and the infants Mary and Erin joined them there a few days later. On 15th September 1973 the grandparents, with the assistance of the police, took the children from the home of their mother, where she and Parsons were in a drunken state, to their own home. On 24th September 1973 the Director issued an authority to take the infants into custody and deliver them to 57 Everest Street, Sunnybank. At the same time the Director wrote to Mrs. Carseldine informing her that the action "in removing the O'Brien children from their mother on 15th September was contrary to the provisions of this Act", i.e. The Children's Services Act. The letter concluded as follows: "In the light of recent events and in order that the children may be given the opportunity of settling in their mother's home you are hereby ordered not to visit or communicate with the children unless approval, pursuant to s. 132(4), is obtained. (at p354)

7. The Child Care Officer of the Department is supervising the placing of the children with their mother." (at p354)

8. It was this removal of the children from the home of the grandparents to that of their mother, under the authority of the Director, that precipitated the grandparents' application for custody. (at p354)

9. The application for custody made by the grandparents was refused by the Supreme Court because The Children's Services Act was construed as excluding the intervention of the court in relation to a child in care thereunder. In so deciding the Court relied upon the decision of this Court in Minister for the Interior v. Neyens (1964) 113 CLR 411 . A survey of the Act is therefore necessary. Part VI relates to "children in need of care and protection". A child in such need is defined by s. 46. Section 47 authorizes an application by the parent of a child to admit the child to the care and protection of the Director. Section 47(2) is as follows:

"If the Director is satisfied that the child in respect of whom such an application is made is in need of care and protection and that such care and protection cannot be secured to such child by the giving of assistance under Part V of this Act he shall by writing under his hand declare such child to be admitted to his care and protection. Such declaration shall be sufficient authority for any person acting on behalf of the Director at any time while such declaration continues in force to take the child in care into his custody and to deliver such child in care to such place as the Director, from time to time directs, and for the person in charge of any such place to receive and keep the child in care until such child in care is otherwise lawfully dealt with."

It was pursuant to these provisions that the infants became children in care on 14th April 1970. A child might, however, become a child in care by virtue of an order of the Children's Court: s. 49. Section 50 authorizes the Director at any time during the continuance in force of a declaration under s. 47 to apply to the Children's Court for an order that the child be admitted to his care and protection and gives the court power to decide such an application after investigation and the hearing of objections. An explanation of this section seems to be that it enables the Director to forestall the automatic termination of the force of this declaration by reason of an application on the part of the person upon whose request the declaration was made to undertake the care and protection of the child: see s. 48(b). If such an application is made, the Director is given time to apply to the Children's Court, under s. 50, to retain the child in his care and protection. In this matter an application was, in fact, made to the Director by Jean O'Brien pursuant to s. 48(b), but this was withdrawn. No application was made by the Director pursuant to s. 50. (at p355)

10. Section 55 is a key section and is as follows:

"(1) When the Director has declared a child to be admitted to his care and protection or a Children's Court has ordered that a child be admitted to the care and protection of the Director the guardianship of such child in care shall pass to and, for so long as the declaration or, as the case may be, order continues in force, vest in the Director. (2) When a declaration made by the Director that a child be admitted to his care and protection ceases to be in force the guardianship of such child in care shall - (a) where such declaration has ceased to be in force by reason of the order of a Children's Court that the child in care in respect of whom such declaration was made be admitted to the care and protection of the Director, remain vested in the Director for so long as such order continues in force; (b) in any other case, pass to and vest in the person or persons who, but for such declaration, would in law be guardian of such child in care. (3) When an order of a Children's Court that a child be admitted to the care and protection of the Director ceases to be in force, the guardianship of such child in care shall pass to and vest in the person or persons who, but for such order, would in law be guardian of such child in care." (at p356)

11. The duty of the Director with regard to a child in care is governed by s. 58 which provides:

"(1) When a child is admitted to the care and protection of the Director either by declaration of the Director or by order of a Children's Court it shall be the duty of the Director to utilize his powers and the resources of the Department so as to further the best interests of such child in care and, in the performance of that duty and without limiting the Director's discretion in that regard, the Director may, from time to time, make use of such facilities and services as may be available or be made available by - (a) any parent of such child in care; (b) a relative or friend of such child in care; (c) any person approved by the Director; (d) placing such child in care in an institution established or licensed pursuant to Part IV of this Act; (e) placing such child in care in a boarding school, hostel or any other place considered by the Director to be in the best interests of such child in care. The Director may impose such conditions upon the use he makes or proposes to make of any of such facilities and services as he considers to be in the best interests of the child in care concerned. (2) A child admitted to the care and protection of the Director shall not be placed, while so admitted, in a child training centre except with the approval of the Minister first had and obtained."

Section 59 is as follows:

"Except as is expressly provided in this Part the provisions of this Part or the making of an order pursuant to this Part or the fact that such an order has ceased to be in force shall not be construed or taken to avoid, or prejudice the rights of any person who, except for the provisions of this Part would be, in law, guardian of any person." (at p357)

12. There are in Pt VII of the Act - headed "Children in Need of Care and Control" - more stringent provisions than those appearing in Pt VI for the control of children subject to a court order subjecting the child to care and control. Such a court order has the effect of vesting the guardianship of the person subject to it in the Director: s. 64. (at p357)

13. It appears to me that the guardianship of a child vested in the Director by either s. 55 or s. 64 is absolute and no court could interfere with the guardianship which the Act itself creates in positive terms. Had, therefore, the grandparents here applied to the court for the guardianship of their infant grandchildren, such an application must have been refused. (at p357)

14. The grandparents' application, however, was not for guardianship; it was for custody, and the problem is whether the court could grant this application consistently with the Act. (at p357)

15. At the outset the question arose how it is that the court can entertain an application for custody of infants by grandparents against their mother and the Director in whom guardianship is vested by statute. The authority for making such an application was, it was argued, to be found in the Rules of the Supreme Court of Queensland, O. 76, r. 1, which inter alia provides:

"An infant may be made a ward of court in any of the following modes, that is to say: (1) By the commencement of an action for the administration of property in which the infant has an interest, or for the direction of the court with relation to the estate or person of the infant and for his benefit;..."

Reference was made to Re L. (An Infant) (1958) Qd R 489 in which Wanstall J. decided that, by virtue of the foregoing rule, an application by the father of an illegitimate infant for custody of the infant constituted the infant a ward of court, and the court then has power under its inherent jurisdiction to award custody. This decision has been followed by other judges of the Supreme Court of Queensland. It seems to me that this construction is questionable. It is unlikely that it was intended that an application for the custody of a child, made to the court by any person, should ipso facto bring that child within the supervision which a court exercises over its wards. If it be so, it is likely that there are many unrecognized wards of court in Queensland. It is also unlikely that the effect of the rule was that an application for custody could be dealt with by the court under its inherent jurisdiction and not under the statute then in force, viz. The Guardianship and Custody of Infants Act, 1891 to 1952 (Q.) notwithstanding that the Act did preserve the operation of the Rules. Furthermore, the context of the rule suggests that a child is made a ward of court so that the court can better protect its interests. When an application is made to the Court for the custody of a child there is no need for the court to find some source of power to protect the interests of the child beyond those which it always has in dealing with application for custody. In my opinion the institution in the Supreme Court of Queensland of proceedings for the custody of the children by the grandparents on their own behalf against the mother was misconceived. Section 102 of The Children's Services Act does preserve the inherent jurisdiction of the Supreme Court but, in my opinion, that jurisdiction did not extend to the application here made for custody. (at p358)

16. Furthermore, I agree with the Supreme Court of Queensland that when a child is in the care of the Director pursuant to the Act the Supreme Court cannot order the child to be taken from the custody in which the Director has placed him and award custody to some other person instead. The responsibility for the care of children has been placed by the Act in the Director as guardian of children in care, and I find no warrant for the court interfering with the exercise of the discretions which are comprehended in that care. (at p358)

17. If s. 55 of the Act is absolute, and I think it is, then this case, to my mind, is within the principle of Minister for the Interior v. Neyens (1964) 113 CLR 411 . (at p358)

18. It appears to me that the Director can, if he sees fit, make an application to the Children's Court under s. 50 to enable that Court to decide what would be best for the children in question. It may be that, having regard to all the circumstances, the Director will decide to make such an application, notwithstanding that it could result in the termination of his care and protection of the children and the giving of the custody of the children to the grandparents: s. 50(3). To adopt such a course would not be an avoidance by the Director of his responsibilities under the Act; it would be an appropriate method of discharging them if there are contested matters of fact to be resolved. (at p358)

19. I would dismiss the appeal. (at p359)

STEPHEN J. Having had the opportunity of reading the reasons for judgment of Mason J. I find myself in agreement with those reasons and with the conclusions which they support. (at p359)

MASON J. This appeal raises an important question as to the jurisdiction of the Supreme Court of Queensland to make an order for custody of children who had been declared by the Director of the Department of Children's Services under s. 47 of The Children's Services Act, 1965-1973 (Q.) to be admitted to his care and protection. The Full Court of the Supreme Court held that by virtue of the provisions of that Act the inherent jurisdiction of the Court to make orders for custody in respect of the four children the subject of the proceedings was displaced once the Director had made such a declaration. (at p359)

2. On 14th April 1970, on the application of the mother, the Director of the Department of Children's Services declared under s. 47 of the Act that the four children, Mary Ellen now aged eleven years, Donna Veronica aged nine years, Michelle Bridget aged eight years and Erin Kathleen aged seven years, were admitted to his care and protection. In March 1972 they were placed in Nazareth House, Wynnum. The circumstances in which they were so placed do not appear but it seems that for some time previously their mother had been unable to care for them. On 1st March 1972 the Director requested the Mother Superior of Nazareth House to allow the appellants, the maternal grandparents of the children, to have access to them. On 12th July 1972 the Director approved of the appellants as fit and proper persons to act as foster parents to them. From that date until August 1973 the appellants had possession of the four children. (at p359)

3. In August 1973 the Director gave his approval to the four children spending their vacation with their mother at her residence. They stayed with their mother until 15th September 1973 when they were removed by the appellants. On 19th September the mother made written application to release the children from the care and protection of the Director. This application was orally revoked on 2nd October and the revocation was confirmed in writing on 15th October. In order to avoid the possibility that an application to release the children from his care and protection was irrevocable the Director obtained from the mother a fresh application dated 15th October to admit the children to his care and protection and on 20th October made a further declaration under s. 47. (at p359)

4. On 24th September 1973 the Director, purporting to act under s. 136 of the Act, authorized a Child Welfare officer to take the children and deliver them to their mother the respondent, claiming that since 14th April 1970 the children had been in his care and protection pursuant to s. 47. On 3rd October the Director notified the appellants that their action in removing the children from the home of the mother was contrary to the provisions of the Act. On 9th October the appellants made an ex parte application for custody of the children on the ground that the mother was unfitted to care for them because she and the man with whom she was living drank to excess, that the children were ill-treated, one of them having been indecently interfered with, and that they were living in squalid conditions. The Supreme Court judge who dealt with the application made an interim order for custody. On 17th October the Director made an application to have the order set aside on the ground that it was made without jurisdiction. (at p360)

5. This application was heard by Andrews J. who held that the Act abrogated the Court's jurisdiction to make an order for the custody of children in respect of whom the Director had made a declaration under s. 47. On appeal to the Full Court this order was upheld. (at p360)

6. The Children's Services Act is a detailed statute which, according to its title, is designed to promote, safeguard and protect the well-being of children through a comprehensive and co-ordinated programme of child and family welfare. It regulated the exercise of jurisdiction by Children's Courts and the conduct of institutions providing for the care and welfare of children. It makes provision for the giving of assistance to families whose child or children are in need of it (Pt V). It provides for the admission to the care and protection of the Director by means of his declaration or by an order of a Children's Court of those children who are in need of his care and protection and it defines the powers and duties of the Director in relation to a child so admitted (Pt VI). The Act also authorizes the admission to the care and control of the Director by means of an order of a Children's Court of those children who are in need of care and control. Again the powers and duties of the Director in relation to children so admitted are defined (Pt VII). The guardianship of children in the care and protection and in the care and control of the Director passes to and vests in him (ss. 55, 64). (at p360)

7. The circumstances in which a child is in need of care and protection and those in which he is in need of care and control overlap to some extent. However, the regime of care and control is designed to meet the more serious cases in which a child of more advanced years (a) is falling or is likely to fall into a life of vice or crime or addiction to drugs; (b) is exposed to moral danger; or (c) is or appears to be uncontrollable (s. 60). The regime of care and protection may apply in some of these instances but it also applies in a variety of cases in which a child's welfare is neglected, cases to which the provisions of Pt VII do not extend. (at p361)

8. Part IX of the Act confers a statutory jurisdiction on the Supreme Court and on Children's Courts to make orders for custody and access, to appoint or remove guardians, and determine who shall be the guardian of a child. (at p361)

9. Whether the inherent jurisdiction of the Court in relation to infants has been ousted turns largely on the provisions of Pt VI, which commence with s. 46. This section defines the circumstances in which "a child shall be deemed to be in need of care and protection". The particular circumstances which give rise to a deemed need for care and protection are enumerated in a series of paragraphs, (a) to (o). The submission made by the appellants' counsel that the section authorizes the making of a declaration by the Director that a child is in need of care and protection is plainly misconceived. The sole function of the section is to provide a comprehensive definition or description of the circumstances which give rise to a need for care or protection. (at p361)

10. As I have already observed, a child in need of care and protection may be admitted to the care and protection either by means of a declaration made by the Director under s. 47 or a Children's Court order under s. 49. It is convenient to examine in the first instance the jurisdiction of the Court to make such an order and the consequences which attend its making. (at p361)

11. Application for an order is made by an authorized officer of the Department (s. 49(1)). He, or a police officer, may without further authority, before making such application, take into custody on behalf of the Director any child suspected on reasonable grounds to be in need of care and protection (s. 49(2)). The Court is bound to hear objections (s. 49(3)). Then, if it is satisfied that the child is in need of care and protection, i.e. that circumstances mentioned in s. 46 are shown to exist, it may (i) order a parent or guardian to enter into a recognizance conditioned that the parent or guardian exercise proper care, protection and guardianship in respect of the child; or (ii) order that the Director shall have protective supervision over the child; or (iii) order that the child be admitted to the care and protection of the Director (s. 49(4)(a)). But the Court shall not make an order in terms of (iii) above unless it is not satisfied that care and protection can be secured by any other order it may make (s. 52). (at p361)

12. Thus, the Court, if satisfied that care and protection can be secured by an order in terms of (i) or (ii) cannot make an order in terms of (iii) above. In order to appreciate the extent of this limitation on the Court's power it is necessary to bear in mind that s. 56 requires that the Court in making a protective supervision order shall specify the matters and objects in relation to which the Director is to exercise his supervision and the section enables the Director to order the child, parent or guardian or any of them to act or refrain from doing any act or thing which pertains to a matter or object so specified in the order. Failure to comply with such an order of the Director is an offence. (at p362)

13. The powers given to the Director in relation to a child by a protective supervision order are far more restricted than the powers which he enjoys when a child is admitted to his care and protection under s. 47 or s. 49. In the case of admission to care and protection it is his duty to utilize his powers and the resources of his Department so as to further the best interests of the child. In performing that duty he may make use of the facilities and services provided by parents, relatives, friends or persons whom he approves and may place the child in an institution, boarding school, hostel or other place (s. 58). (at p362)

14. Orders made under s. 49(4)(a)(ii) and (iii), subject to any extension by the Minister under s. 57, continue in force until the child attains eighteen years of age unless a Children's Court otherwise orders or the Director releases the child from the operation of the order under s. 54 (s. 53(1)). An order under s. 49(4)(a) (iii) is sufficient authority for any person acting under the authority of the Director, so long as the order remains in force, to take the child into his care and custody and deliver the child to such place as the Director may direct and for the person in charge of such place to receive and keep the child until it is otherwise lawfully dealt with (s. 53(2)). It is an offence to remove a child in care without the written authority of the Director (s. 133). An order made by a Children's Court may be revoked by the Court on application made by the Director, a former parent or guardian (s. 51). (at p362)

15. Whether these provisions, considered together with s. 55 which vests in the Director the guardianship of a child in the Director's care and protection, are sufficient to displace the inherent paternal jurisdiction of the Supreme Court in relation to a child the subject of an order by a Children's Court under s. 49(4)(a)(iii) during the currency of that order, notwithstanding the absence of specific provision in the statute speaking to that effect, it is not strictly necessary to decide. (at p363)

16. Such a conclusion could be sustained only on the footing that it is achieved by "necessary, indeed inescapable, implication", to use the words of Barwick C.J. in Minister for the Interior v. Neyens (1964) 113 CLR 411, at p 419 , for the inherent jurisdiction of the Supreme Court with respect to infants which derives from the Supreme Court Act of 1867 (Q.) and the Equity Act of 1867 (Q.) is the paternal or prerogative jurisdiction formerly exercised by the Court of Chancery on behalf of the Crown. The common law principle is that the Crown is not bound by statute unless it is expressly named or it so appears by necessary implication. Section 13 of the Acts Interpretation Acts 1954-1971 (Q.) provides that no Act shall be binding on the Crown or derogate from any prerogative right of the Crown "unless express words are included therein for that purpose". It may be that, if as a matter of construction of the statute there is manifest an intention that the Crown is to be bound, the result is the same as if the Crown were named and that effect must then be given to the statute according to its tenor. However, in this case there is no occasion to decide whether s. 13 merely expresses the common law principle or works an alteration to it for, as will appear, it is my view that jurisdiction to make an order of the kind sought is not displaced expressly or by necessary implication. (at p363)

17. The extensive nature of the powers vested in the Director by ss. 55 and 58, the circumstance that the order for admission to care and protection made by the Children's Court can only be brought to an end by the means described in s. 53 (there being no provision for its termination by the Supreme Court), the provisions which confer lawful authority on those who deal with a child in care on the authority of the Director and s. 133 which makes it an offence to remove a child without his written authority provide some support for the view that the jurisdiction of the Supreme Court is displaced or restricted in relation to a child in care and protection by virtue of an order under s. 49. In addition there is the fact that the regime of care and protection commences with a court order, albeit not an order of a superior court. It would be "anomalous", as was said in Neyens' Case (1964) 113 CLR, at p 424 , if the Supreme Court could, by making an order for custody otherwise than by way of appeal, displace the order made by a Children's Court, after a judicial consideration of the circumstances of the case. (at p363)

18. Even so, notwithstanding the far-reaching nature of the statutory scheme, it may be possible to say that the inherent jurisdiction is not wholly ousted and that it remains available to be exercised, not in competition with the care and protection which is vested in the Director by the Act, but in aid of his statutory responsibilities, and if need be, when the Director is not performing his duties and exercising his powers in accordance with the Act. Be this as it may, this case turns on a declaration made under s. 47 and I turn to the circumstances in which the Director's power to make such a declaration arises and the consequences which attach to its making. (at p364)

19. Before a child can be voluntarily admitted under s. 47 to the care and protection of the Director on the application of a parent, guardian, relative or a person of good repute, the Director is required, before making his declaration, to make such inquiry and investigation as he considers necessary. If satisfied that the child is in need of care and protection and that such care and protection cannot be secured by the giving of assistance, he is bound to make the declaration. When made, it is sufficient authority for a person acting on behalf of the Director to take the child in care into his custody and to deliver the child to such place as the Director may from time to time direct (s. 47). (at p364)

20. A declaration normally continues in force until the child attains the age of eighteen years unless (a) it is revoked by the Director; or (b) the parent or former guardian applies to undertake the care and protection of the child, in which event the declaration terminates one month after the making of the application; or (c) a Children's Court makes an order under Pt VI with respect to the child (s. 48). (at p364)

21. The Director may, during the continuance in force of a declaration made under s. 47, apply to a Children's Court for an order that the child be admitted to his care and protection (s. 50). His power to apply to the Children's Court is discretionary and the Part contains no provision requiring him to make such an application. The declaration made by the Director is not subject to appeal or review, although, if the Director makes an application under s. 50, the Court may conclude that the child should not be admitted to his care and protection, in which event pursuant to s. 48 his declaration comes to an end. (at p364)

22. It will be noticed that the Director's power to make a declaration is not limited, as is the power of a Children's Court to make an order under s. 49(4)(a)(iii), by the provisions of s. 52. The Director is bound to make a declaration if there is a need for care and protection and it cannot be secured by assistance. The probability that the need for care and protection could be sufficiently secured by orders of the kind for which s. 49(4) (a) (i) and (ii) provide is not a ground upon which the Director can decline to make a declaration. This probability may constitute a reason for his applying to a Children's Court for an order under s. 50, but it has no relevance to the declaration which he is called upon to make under s. 48. (at p365)

23. It will be seen, therefore, that the Director enjoys the extensive powers conferred by ss. 55 and 58, that his declaration can only be brought to an end by the means described in s. 48, that his declaration is sufficient authority for any person acting on his behalf, so long as the declaration remains in force, to take the child into his custody and delivery it to such place as the Director may direct and for the person in charge of such place to receive and keep the child until it is otherwise lawfully dealt with (s. 47 (2) ) and that it is an offence under s. 133 to remove a child in care without the written authority of the Director. In these respects the admission of a child to the care and protection of the Director by his declaration stands in the same position as the admission of a child to such care and protection by means of a court order. (at p365)

24. However, there is significance in the differences between the two forms of admission to care and protection. In the case of voluntary admission the Director is more restricted than a Children's Court in the means by which the need for care and protection may be satisfied. Indeed, it is the exercise of an administrative discretion by the Director himself which initiates the regime of care and protection. Although the Director is required to make inquiry and investigation and to hear objections, his decision is not a judicial determination. Nor does the Act make his decision subject to review or appeal by a court in which the welfare of the child can be evaluated in the light of claims made by persons who have an interest in its welfare. The Director's right to apply to the Children's Court may not be exercised because a determination by that Court does not offer him additional powers with respect to a child; rather does it offer the possibility that his care and protection may come to an end (an event which he can bring about by his own act under s. 48) or that there will be substituted for his care and protection an order under s. 49(4) (a) (i) or (ii). (at p365)

25. The vesting of the guardianship in the Director by s. 55 is not to my mind a decisive consideration against the view that the inherent jurisdiction of the Supreme Court is preserved. The courts have always been prepared, when the welfare of the child requires it, to divorce custody from guardianship; the existence of guardianship in one person is not a bar to the making of an order for custody in favour of another. And the remarks made by the Chief Justice in Neyens' Case (1964) 113 CLR, at p 419 , with respect to s. 19 of the Child Welfare Ordinance have no application here because there the words "notwithstanding any other law of the territory relating to the guardianship or custody of children", words which have no present counterpart, were regarded as indicating that the vesting of guardianship in the Minister was paramount over other laws. (at p366)

26. In considering whether there is a necessary implication that the inherent jurisdiction is displaced, it must be kept firmly in mind that in accordance with tradition the guardianship and custody of infants has been the subject of judicial determination. Hitherto curial orders have been central to the entire concept of guardianship and custody. A total departure from the procedure of judicial determination and the substitution for it of a system of administrative discretion is, I think, a conclusion not lightly to be attributed to the statute unless its language and provisions clearly compel that result. Although the legislative scheme is far-reaching I do not think that its extensive character is a sufficient ground for concluding that the prerogative jurisdiction of the Supreme Court is entirely displaced. There may be occasions for its exercise in aid of the Director's statutory responsibilities or when it appears that the Director is not discharging his responsibilities or exercising his powers in conformity with the Act. The vesture of wide and general powers in the Director is not inconsistent with the continued existence of the Supreme Court's inherent jurisdiction, notwithstanding a reluctance, or perhaps an incapacity, on the part of the Court to exercise that jurisdiction when the Director is acting in conformity with the Act and is not invoking the assistance of the Court. (at p366)

27. What action should be taken in particular circumstances in the exercise of that jurisdiction is a difficult question. Clearly enough the Court will not lightly interfere once the Director has made a declaration under s. 47. But if it should appear that he is not acting in conformity with the Act, or, to put it more specifically, that he is acting in breach or disregard of his statutory duties (In re M. (An Infant) (1961) Ch 328, at p 345 ) the Court will exercise its paternal jurisdiction, if need be, by making an order for custody, although in the framing of such an order it may be necessary to take some care to preserve the rights of the Director under the Act. (at p367)

28. I make no comment on the facts of the present case otherwise than to say that if the evidence remained in its present state the Supreme Court would be amply justified in exercising the jurisdiction which in my view it possesses, for the conclusion would be irresistible that the Director has failed to apply himself to the welfare of the children. However, I have gathered that the Director has thus far refrained from adducing evidence by way of answer of the appellants' allegations so that the question of jurisdiction may be determined at the threshold. It is not for this Court, then, to concern itself with the issues of fact which may hereafter arise. (at p367)

29. In the course of argument a question arose as to the jurisdiction of the Supreme Court to make an order for custody on the application of grandparents. It is well established that the inherent jurisdiction extends to the making of an order in favour of a grandparent on his application as next friend of the child: In re Fynn (1848) 2 De G &Sm 457 (64 ER 205) (which was disapproved on other grounds in J. v. C. (1970) AC 668 ); In re McGrath (Infants) (1892) 2 Ch 496, at p 511 . In my opinion this power may be exercised without making the child a ward of Court as a preliminary to the making of such an order. In this respect I agree with the conclusion reached by Wanstall J. in Re L. (An Infant) (1958) Qd R 489 and with the construction which he gave to O. 76, r. 1 of the Rules of the Supreme Court, although it may well be that a similar conclusion would be reached in the absence of such a rule. (at p367)

30. The application by the appellants was not expressed to be made as next friend of the four children. I would be disposed to regard it as having been made on behalf of the children and I have dealt with it on that footing. (at p367)

31. In the result I would allow the appeal. (at p367)

Orders

Appeal allowed with costs.

Order of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order that the appeal to that Court be allowed with costs, that the orders made by Andrews J. on 9th November 1973 be set aside, and that the appellants' application for custody be remitted to the Supreme Court for hearing, costs of the proceedings already held before Andrews J. to be in the discretion of the Court hearing the application for custody.