CEO, Department for Child Protection v Citizen

[2007] WASC 312

CEO, DEPARTMENT FOR CHILD PROTECTION -v- CITIZEN [2007] WASC 312

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 312
Published:	18/12/2007
Case No:	SJA:1095/2007	Heard:	SUPPRESSED
Coram:	MARTIN CJ	Delivered:	18/12/07
No of pages:	19	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	CEO, DEPARTMENT FOR CHILD PROTECTION JOHN CITIZEN
Catchwords:	Appeal Standing to seek revocation of care and protection order Child's maternal mother intellectually disabled Child placed under a care and protection order Child resided with maternal grandparents for most of his life Child removed from grandparents after grandfather issued with negative notice under Working with Children (Criminal Record Checking) Act 2004 (WA) Whether grandparents are entitled to be a party to the proceedings in relation to the care and protection order Words and phrases 'In need of care and protection'
Legislation:	Child Welfare Act 1947 (WA), s 4, s 30 Children's Court of Western Australia Act 1988 (WA), s 42 Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 67, s 93, s 147 Criminal Appeals Act 2004 (WA), s 6 Criminal Procedure Act 2004 (WA) Working With Children (Criminal Record Checking) Act 2004 (WA), s 6(1)(a)(vi)
Case References:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : CEO, DEPARTMENT FOR CHILD PROTECTION -v- CITIZEN [2007] WASC 312 CORAM : MARTIN CJ HEARD : SUPPRESSED DELIVERED : 19 DECEMBER 2007 PUBLISHED : 19 DECEMBER 2007 FILE NO/S : SJA 1095 of 2007 BETWEEN : CEO, DEPARTMENT FOR CHILD PROTECTION

Appellant

AND

JOHN CITIZEN
Respondent

ON APPEAL FROM:

Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P A NICHOLLS

File No : CCKA 404 of 2001

Catchwords:

Appeal - Standing to seek revocation of care and protection order - Child's maternal mother intellectually disabled - Child placed under a care and protection order - Child resided with maternal grandparents for most of his life - Child removed from grandparents after grandfather issued with negative notice under Working with Children (Criminal Record Checking) Act 2004 (WA) -

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Whether grandparents are entitled to be a party to the proceedings in relation to the care and protection order

Words and phrases - 'In need of care and protection'

Legislation:

Child Welfare Act 1947 (WA), s 4, s 30

Children's Court of Western Australia Act 1988 (WA), s 42
Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 67, s 93, s 147
Criminal Appeals Act 2004 (WA), s 6
Criminal Procedure Act 2004 (WA)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 6(1)(a)(vi)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Ms J M Abbott
Respondent : Mr A M Dungey

Solicitors:

Appellant : Department for Child Protection
Respondent : Macdonald Rudder

Case(s) referred to in judgment(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321


(Page 3)

MARTIN CJ:

(The following judgment was delivered extemporaneously and has been edited so as to remove any factual material that might identify the child or the parties to the proceedings. All names referred to in this judgment are pseudonyms only.)

1 The Chief Executive Officer of the Department for Child Protection (CEO) applies to the Court for leave to appeal from a decision of the Children's Court. The notice of appeal is defective in form in that it appeals to the Court of Appeal of Western Australia. It is now accepted by all parties that the appeal should be to a single judge of the Supreme Court, with leave. The provisions of the Children's Court of Western Australia Act 1988 (WA) and the Criminal Procedure Act 2004 (WA) make that clear.

2 An application was made by the CEO for a stay of the decision made by the Children's Court, but rather than deal with the matter on the basis of an application for a stay, I indicated to the parties that I would prefer to deal with the requisite application for leave to appeal and the appeal at the same time, and on an urgent basis. The reason for that course is that the matter is to come back before the Children's Court two days after the hearing listed in this Court, and I consider it highly desirable for the decision of this Court to be available to the Children's Court on that occasion.

3 The matter came before a Magistrate in the Children's Court on an application by Mrs Jane Citizen. The application was for a revocation of an order of the Children's Court that had been made during June 2002 to the effect that the child, Barry Citizen, was in need of care and protection and that he be committed to the care of what was then the Department for Community Development (now the Department for Child Protection) (the Department) until he attains the age of 18 years. Barry was almost one year old at the time that order was made, having been born in mid-2001.

4 Mrs Citizen's application for revocation of the earlier order came before the Children's Court in early November 2007. The Court had before it an affidavit of Mrs Citizen, in support of her application. That was the only evidence before the court at the time the determinations were made which are the subject of the application for leave to appeal.

5 It is desirable for me to set out the terms of that affidavit at some length because they explain the history of these proceedings, and the way

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in which Barry Citizen has been cared for, since he was born in 2001. Mrs Citizen deposes that she is the maternal grandmother of Barry Citizen, who was born in mid-2001. Mrs Citizen's daughter, Susan Cook, is the mother of Barry and has a lifelong intellectual disability which makes her unfit to care for children. Mrs Citizen deposes that Barry's father is unknown.

6 She also deposes that Susan came back to live with her and her husband during the latter part of her pregnancy and that she and her husband took Susan to the hospital when she began to have contractions. She also deposes that Susan was in hospital after Barry's birth for about a week because the hospital wanted to monitor Susan's mothering of her baby due to her intellectual disability. Apparently during that week Susan slept during Barry's feeding times and the hospital's social worker contacted the Department to express its concerns about Susan's ability to care for Barry.

7 At that time, Mrs Citizen was contacted by an officer of the Department and a discussion was had as to whether or not Mr and Mrs Citizen could in effect raise Barry. Mrs Citizen deposes that she did not disclose her husband's background at that time. Her husband, Mr John Citizen, had been convicted of two counts of attempted incest in the 1980s and in the early 1990s was convicted of one count of indecent assault. By now those convictions have been declared spent convictions by the District Court of Western Australia.

8 Mrs Citizen deposes that she did not 'consciously conceal those convictions'. She simply felt that because Barry was their grandchild and as the offences were so old, they no longer mattered.

9 Significantly she deposes that she and her husband took care of Barry for the first month of his life but when he was about a month old, there was a knock on the door from the same officer of the Department who was accompanied by a police officer. That officer, according to Mrs Citizen, explained that Susan had been in touch with the Department, had told them about Mr Citizen's criminal record and had 'signed Barry over to the Department'.

10 Mrs Citizen deposes that she and her husband then handed Barry over to the Department, after which he lived in a group home for about 15 months. She deposes that she and her husband had supervised contact with Barry by arrangement with the Department during that time.

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11 She deposes that in June 2002 Barry was declared by the Children's Court to be a child in need of care and protection, which is the order to which I have earlier referred. Also in evidence is the application upon which that order was made. That is an application made about a month after Barry was born, which would appear to be about the time Barry was removed from the care of his grandparents. It is a fair inference that the application was made because Barry had been removed from the care of his grandparents, or perhaps to enable that to occur.

12 Mrs Citizen deposes that in early 2003 after she and her husband had undergone psychological assessment and had been approved by the Department as fit to care for Barry, he was returned to their care. She also deposes that at a case conference in 2004, the Department agreed, in principle, to relinquishing the care of Barry if Mr and Mrs Citizen applied to the Family Court of Western Australia for parenting orders. However, they did not do anything about that at the time because it did not seem important. They had Barry with them and they did not have the money to hire a lawyer to go to court.

13 Mrs Citizen deposes that Susan fell pregnant again in late 2005 and her second child, Heather Citizen, was born in 2006. Mrs Citizen attended Heather's birth. Immediately after her birth, she was handed to Mrs Citizen. Heather experienced some early medical problems and was kept in hospital. During the week Heather was in hospital, Mrs Citizen bottle-fed her and upon her discharge Heather returned home with Mrs Citizen, and Susan returned to her own home. Mrs Citizen has raised Heather ever since. Heather is of course a sibling of Barry.

14 Mrs Citizen deposes that the Department for Community Development (and its contemporary) was kept fully informed of those developments and has never applied for a care and protection order in respect of Heather, so Heather remains in the care of her grandparents.

15 In 2006, Mr and Mrs Citizen were notified that pursuant to new legislation, every carer of the Department had to have a 'Working With Children' card and they were asked to make an application for it. Applications for such cards were lodged by them at that time. Mrs Citizen was issued with a 'Working with Children' card a few months after she applied for it, a card which she still holds.

16 Mrs Citizen deposes that during this time both she and her husband underwent further psychological assessment to assess their fitness to care for children and they were assessed fit. That appears to be the second

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occasion upon which the Department, with full knowledge of Mr Citizen's prior convictions, reviewed his fitness to provide care and custody for Barry, and determined after that review that Barry should remain with Mr and Mrs Citizen.

17 Mrs Citizen goes on to depose that in 2007, her husband received a letter stating that it was the intention of the Department to issue a negative notice to him. Although it is not at all clear from the materials, counsel for the CEO informed the Court that the department issuing that advice was probably the same department; that is to say, the department now known as the Department for Child Protection. However, it seems that the administrative arrangements for the issue of 'Working with Children' cards have recently changed.

18 At all events, just before Mrs Citizen brought her application in the Children's Court, Mr Citizen received a letter advising that a negative notice under the Working With Children (Criminal Record Checking) Act 2004 (WA) had been issued. Mrs Citizen says that she and her husband knew what would have to be done in that event, so they telephoned the Department of which the appellant is CEO - and notified the relevant officer, after which Barry was collected by the Department.

19 Mrs Citizen and her husband told Barry that he was going on a holiday. Mrs Citizen deposes that she engaged a lawyer to contact the Department and that lawyer was advised that the Department had changed its attitude, for reasons that I need not go into because they do not appear to be sustained by the most recent submissions made on behalf of the Department. Those submissions are to the effect that the only reason that Barry was removed from the care of his grandparents was because Mr Citizen was issued with a negative notice under the Working With Children (Criminal Record Checking) Act 2004.

20 It is accepted in the submissions from the Department and by counsel for the CEO that that step was not taken on the basis of any review of the fitness of Mr and Mrs Citizen to provide care and support for Barry, subsequent to the two assessments by the Department made with full knowledge of Mr Citizen's convictions. After each of those reviews, it was concluded that Mr and Mrs Citizen were suitable custodians of Barry, and, in the case of the second review, presumably Heather as well, as no step has been taken by the Department to remove Heather from the care of Mr and Mrs Citizen. The only basis for intervention by the Department was the issue of the negative notice, perhaps on behalf of the same CEO who appeals today.

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21 Mrs Citizen goes on to depose that Barry has always called her 'Mum' and 'Nan' interchangeably and has always known his biological mother, who he only sees occasionally, as 'Susan'. She deposes also to arrangements that were made to take both Heather and Barry to the Department offices whenever a request was made so that their mother could see them.

22 She also deposes that it was her understanding from the officer of the Department that the Department had obtained expert evidence that she and her husband were fit to care for the children. She deposes that since the Department no longer had any involvement in supervising Susan's contact with Barry, the Department has reverted to its earlier position and no longer opposes the order for care and protection being relinquished. It is therefore Mr and Mrs Citizen's intention to apply to the Family Court of Western Australia for parenting orders in respect of Barry.

23 Mrs Citizen also deposes that when she applied for parenting orders for Heather, it was with the consent of Heather's mother, Susan.

24 She goes on to depose that since Barry was removed from their care, he has been telephoning her and her husband every night. It appears that Barry calls his grandfather 'Dad'. Mrs Citizen deposes that Barry 'tells us that he likes the lady he is staying with' but apparently at the time the affidavit was sworn there had been advice from the Department that he would only be there for a very short period because that lady had not been approved to be a carer.

25 Mrs Citizen deposes that Barry is in primary school, a school which she and her husband consider to be entirely suitable for Barry, a school with caring teachers and where Barry has made a lot of friends and is performing well. He gets one-to-one attention at that school because he has been assessed as having borderline intellectual disability. However, since he had been taken from them 'Barry hasn't been able to go to school Thursday or Friday', so at the time Mrs Citizen's affidavit was sworn, they did not know 'if he would be going there next week or if he is not going then where'.

26 Mrs Citizen deposes that her home is the only home that Barry can remember living in. She says that she understands why 'Working With Children' cards are necessary but in her case she believes that Barry's best interests would be served by returning him home to live with her and her husband as soon as practicable.

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27 She deposes that she and her husband did give consideration to separating so that Barry could return home to live with Mrs Citizen and Heather. However, they have been married for 38 years and she believed that it would be almost as traumatic for Heather and Barry to lose contact with Mr Citizen as it would be for Barry to lose contact with both of them. She deposes that she and her husband 'have always worked as a team' caring for the children and 'do not wish to be alone'. She decided after much care and thought that the needs of their granddaughter, Heather, had to take priority.

28 The CEO submits that Barry was removed from Mr and Mrs Citizen in 2001 because the Department became aware of Mr Citizen's criminal convictions. After learning of those convictions, the Department was not prepared to continue with the placement until an assessment was completed as to the safety of the child in Mr Citizen's care. It is then said at 'the completion of the assessments in 2003 the child was placed back with [Mr Citizen] and [Mrs Citizen].'

29 As I have mentioned, on the uncontradicted evidence before the Magistrate in the Children's Court, Mr and Mrs Citizen were again assessed by the Department as suitable custodians of Barry in 2006. The CEO accepts by counsel that there has been no adverse assessment of their suitability. The only thing that has changed is that a negative notice has been issued to Mr Citizen as a result of his application for a 'Working with Children' card.

30 I digress to observe that there was no evidence before the Magistrate, nor is there any evidence before me, to the effect that the Department had taken control of Barry prior to the application to the Children's Court in 2001. On the contrary, the evidence is to the effect that Barry was living with his grandparents at the time an application was made for an order that he was in need of care and protection. This is of some significance to the legal issue raised by the CEO, as I will show.

31 Paragraph 8 of the submissions filed on behalf of the CEO is in the following terms:

The child was removed from [Mr Citizen's] care [in 2007] by the Department because the respondent was issued with a negative notice that was issued to him in relation to the Working With Children (Criminal Record Checking) Act 2004

This confirms that the only basis upon which the Department decided to intervene, was because of the issue of the negative notice, and not because

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of any assessment which was contrary to the two earlier assessments which had been made to the effect that Barry's grandparents were appropriate persons to bring him up.

32 Turning to the Working With Children (Criminal Record Checking) Act 2004 by s 6(1)(a)(vi) of that Act, child-related work is defined to include 'a placement arrangement under the Children and Community Services Act 2004'. It seems from my review of the relevant legislation that the arrangements that were made in respect of Barry under the Child Welfare Act 1947 (WA) were probably that he was placed with his grandparents under s 29(2) of that Act, as and from early 2003. Following the repeal of that Act, it is accepted by counsel for the CEO that there was a placement arrangement under the provisions of the Children and Community Services Act 2004 (WA).

33 It follows that because such an arrangement constitutes the provision of 'child-related work', while the negative notice remains in force there is an apparently insurmountable impediment to the continuation of a placement arrangement under the Working With Children (Criminal Record Checking) Act 2004.

34 Notwithstanding that apparently insurmountable obstacle, the CEO submits that the proper course for Mr and Mrs Citizen to have followed was to apply to the CEO for the review of a case planning decision under s 93 of the Children and Community Services Act 2004. In the current circumstances such a course would have been entirely futile because of the effect of the Working With Children (Criminal Record Checking) Act 2004. I can see no logical basis for the proposition that Mr and Mrs Citizen should be compelled to take a course which, in the current circumstances, would be utterly futile.

35 In the current circumstances, the only way that Mr and Mrs Citizen can restore the position which applied to Barry's care and protection, prior to the issue of the negative notice under the Working With Children (Criminal Record Checking) Act 2004, and reunite Barry with them and his sister, Heather, who are the only family he has known, is to obtain revocation of the care and protection order. No doubt that is why Mrs Citizen applied for revocation of that order.

36 The Court to which such an application is made will, of course, have regard to all of the evidence adduced upon the substantive hearing of such an application in order to determine whether it was in the best interests of Barry for the care and protection order to be revoked in order that he can return to live with his grandparents, in whose care he had been placed by

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the Department for most of five years, or whether the care and protection order should be continued. The effect of continuing the care and protection order would be that at least until the negative notice issued under the Working With Children (Criminal Record Checking) Act 2004 is reversed, the arrangements that have been made, apparently satisfactorily, for Barry's care and control will be discontinued. While it is not for me to attempt to pre-empt or prejudge the decision of the court, which will be made after all relevant evidence has been adduced, it is appropriate for me to observe that the course taken by Mr and Mrs Citizen, of asking an independent and impartial court to review all the evidence and determine which future course would be in Barry's best interests, seems to me to have been entirely appropriate.

37 In those circumstances it is surprising that when the matter came before the Magistrate, the CEO submitted that the court had no jurisdiction to entertain the question of whether or not Barry was a child who continued to need care and protection. That proposition, put on behalf of the CEO, both to the Magistrate and to this Court, would deny any capacity for the Court to perform an independent review of the best arrangements to be made for Barry, having regard to all the evidence. It is a proposition which seems to me to be contrary to basic notions of fairness, justice and humanity.

38 Mrs Citizen and her husband have been caring for Barry with the consent and approval of the Department with knowledge of Mr Citizen's convictions since early 2003. They are caring for his sister, as the Department knows. Counsel for the CEO was unable to point to any sound reason why, in these circumstances, the Court should not determine whether or not Barry remained in need of care and protection.

39 The only argument advanced in support of the proposition that the Children's Court should be denied the jurisdiction to determine Barry's future, is a technical legal argument based on the range of people who can initiate proceedings for a review of the question of whether a child continues to be in need of care and protection. But technical legal points should not be taken for their own sake - especially where the welfare of children is involved.

40 The CEO is given important responsibilities relating to the welfare of children by the Children and Community Services Act 2004. In carrying out those responsibilities, in a very real sense he represents the Western Australian community, and the public interest which our community has in the welfare of our children. When parties to litigation represent the

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public interest, it is important that the stance which they adopt in the litigation properly reflect, and give effect to, the public interest they represent. Sometimes that approach is reflected in the formal adoption, by government, of a 'model litigant' policy, such as that adopted by the Commonwealth of Australia. But irrespective of whether such a policy is formally adopted, litigants who represent the public interest should bear that interest strongly in mind when deciding upon the approach to be taken to the conduct of that litigation. And where a litigant participates in proceedings by reason of powers and responsibilities conferred by statute, it is obviously essential that the stance adopted in the litigation be consistent with the provisions of that statute.

41 But the position adopted on behalf of the CEO in this case seems to me to be fundamentally inconsistent with many of the provisions of the Children and Community Services Act 2004 (the Act).

42 Under s 6(a) of the Act, the objects of that statute are, firstly:

to promote the wellbeing of children, other individuals, families and communities.

43 On the evidence before the Magistrate and before me, that objective was being adequately served under the arrangements that had been made by the Department prior to the issue of the negative notice under the Working With Children (Criminal Record Checking) Act 2004. The steps taken on behalf of the CEO to prevent the Court from considering the arrangements to be made for Barry's future appear to be inconsistent with the achievement of this fundamental statutory objective.

44 The second objective identified in s 6(b) of the Children and Community Services Act 2004 is:

to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children.

45 That is another objective which appears to me to be inconsistent with the proposition that the court lacks jurisdiction to determine whether or not Barry remains in need of care and protection or whether, as Mr and Mrs Citizen assert, they, as his family, can adequately provide that care and protection.

46 The third objective specified in s 6(c) of the Act is:

to encourage and support parents, families and communities in carrying out [the role of safeguarding and promoting the wellbeing of children].

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47 A submission that Mr and Mrs Citizen, who are Barry's family and have been caring and providing for him since he was a little over one year old, lack the standing to ask a court to determine whether or not Barry needs care and protection in the circumstances I have described seems to me to be fundamentally inconsistent with that objective.

48 The fourth objective of the Act as specified by s 6(d) is:

to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care.

49 The Department had furthered that objective by the arrangements that it had made for Barry for almost five years. The submission that the Court lacks the jurisdiction to determine whether it is in the best interests of Barry for those arrangements to continue is in my view inconsistent with that objective.

50 Section 7 of the Act provides:

In performing a function or exercising a power under this Act in relation to a child, a person or the Court must regard the best interests of the child as the paramount consideration.

51 Section 8 of the Act specifies the factors that are to be taken into account in determining what is in the child's best interests. The first of those is 'the need to protect the child from harm'. No doubt that is a factor which was taken into account by the Department when it twice assessed Mr Citizen's suitability to care for Barry, with knowledge of his prior convictions. It is also a factor that would be central to any assessment by the Children's Court of the extent to which Barry remains in need of care and protection. But the position adopted by the CEO, if upheld, would preclude the Court from undertaking that assessment.

52 The third factor identified by s 8(c) of the Act is:

the capacity of the child's parents, or of any other person, to provide for the child's needs.

But the submission which the Department made to the Children's Court of Western Australia and which it repeats to this Court would deprive the Court of jurisdiction to determine whether or not Mr and Mrs Citizen have the capacity to provide for Barry's needs.

53 The fourth factor to be taken into account under s 8(d) of the Act in determining the best interests of a child is:
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the nature of the child's relationship with the child's parents, siblings and other relatives and with any other people who are significant in the child's life.

54 The submission made on behalf of the CEO to the Magistrate, and repeated in this Court, would deprive the Court of jurisdiction to determine whether it was in the best interests of Barry to remain in accommodation with his sister and with his grandparents, who have been so significant in his life.

55 Under s 8(g) of the Act, the seventh factor to be considered when assessing the child's best interests is as follows:

the importance of continuity and stability in the child's living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from -

(i) the child's parents;

(ii) a sibling or other relative of the child;

(iii) a carer or any other person (including a child) with whom the child is, or has recently been, living; or

(iv) any other person who is significant in the child's life.

56 A submission that the Court lacks jurisdiction, if accepted, would deprive the Court of the opportunity to consider the application of those factors to the circumstances in which Barry currently finds himself.

57 Section 8(h) of the Act refers to:

the need for the child to maintain contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life.

58 Again the submission advanced on behalf of the CEO would deprive the Court of jurisdiction to determine whether or not that is a factor which should cause it to conclude that the best interests of Barry are served by revoking the care and protection order, thus restoring the arrangements under which Barry was living with his grandparents.

59 Section 9 of the Act refers to the guiding principles that are to be observed in the administration of the Act. That provision sets out the following principles that must be observed:

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(a) the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child's wellbeing;

(b) the principle that the preferred way of safeguarding and promoting a child's wellbeing is to support the child's parents, family and community in the care of the child;

…

(e) the principle that every child should have stable, secure and safe relationships and living arrangements;

(f) the principle that intervention action (as defined by s 32(2)) should only be taken in circumstances where there is no other reasonable way to safeguard and promote the child's wellbeing;

(g) the principle that if a child is removed from the child's family then, so far as is consistent with the child's best interests, the child should be given encouragement and support in maintaining contact with the child's parents, siblings and other relatives and with any other people who are significant in the child's life;

…

(j) the principle that a child's parents and any other persons who are significant in the child's life should be given an opportunity and assistance to participate in decision-making processes under this Act that are likely to have a significant impact on the child's life.

60 In my view, the submission made on behalf of the CEO to the Magistrate and repeated in this appeal is fundamentally inconsistent with each and every one of the above principles specified to be guiding principles in the administration of the Act. That is because the submission would deny Mr and Mrs Citizen, who are members of Barry's family, and who appear to have provided him with a stable family home, the capacity to ask an independent court to determine the best arrangements to be made for Barry's future.

61 The submission that the Court lacks jurisdiction to take account of those principles would defeat their application. Instead the position adopted by the CEO seems to be that, because of a particular view taken as to the wording of a section in the Act, the only remedy Mr and Mrs Citizen have in the circumstances in which they find themselves, is to pursue a futile application for review to the CEO. In my view, that proposition is fundamentally inconsistent with the many principles and objects of the Act to which I have referred.

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62 It follows that I would only uphold the submission made on behalf of the CEO if I was to conclude that clear and unequivocal and express language found in the Act compelled that conclusion.

63 Turning then to that question, I start with s 147 of the Act. That provides:

In protection proceedings each of the following people is a party to the proceedings -

(a) …

(e) any other person considered by the Court to have a direct and significant interest in the wellbeing of the child.

64 There was abundant evidence before the Magistrate and before this Court to sustain the conclusion that both Mr and Mrs Citizen have a direct and significant interest in the wellbeing of Barry. Therefore, s 147 provides a clear indication from the legislature that Mr and Mrs Citizen should be parties to the proceedings.

65 The submission, however, of the CEO is that because s 67 of the Act provides that 'a party to the initial proceedings may apply to the Court for revocation of a protection order', only a party to the initial proceedings can apply for such an order and that in this case neither Mr nor Mrs Citizen were parties to the initial proceedings. Therefore, it is said Mrs Citizen's application was incompetent and the order made by the Magistrate to substitute Mr Citizen was ineffective because he also lacked the capacity to initiate proceedings.

66 In answer to the submission put on behalf of the CEO, counsel for Mr and Mrs Citizen relied on s 30(3)(b) of the Child Welfare Act 1947 which is in the following terms:

In relation to an application for a declaration that a child is in need of care and protection, or any complaint that a child is a habitual truant, -

(a) …

(b) the child, the parents and any guardian of the child, and any person who is alleged to have contributed by action or neglect towards the need of the child for care and protection, shall be deemed to be parties to the proceedings.

67 He argued that Mr Citizen was a person who was alleged, at the time Barry was taken into the care of the Department in 2001, to have
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contributed to his need for care and protection, and was therefore deemed to have been a party to those proceedings.

68 When the submission was put to the Magistrate on behalf of the CEO, the following interchange took place between counsel for the CEO and the Magistrate. Counsel for the CEO said:

Counsel: I realise the child was taken off because of him but the same issue stands as far as the standing on this.

Magistrate: Are you conceding the child was taken because of him?

Counsel: Yes, I am.

Magistrate: So the child wasn't taken because of her, was it?

Counsel: No, that's correct.

Magistrate: So it was only taken because of him, so he's the -

Counsel: That's correct.

Magistrate: He's the person who comes within section 30(3)(b), she doesn't.

Counsel: Well, yes, that's correct, yes.

Magistrate: So he could be a possible applicant on that basis.

Counsel: He could possibly be an applicant, yes. My original argument still stands, as far as that, but he certainly could put himself forward.

Magistrate: Well, for the purposes of today so that this matter could be dealt with expeditiously, do you have any objection if I rule that Mrs [Citizen] - that is, [Jane Citizen] - has no standing.

Counsel: That's - - -

Magistrate: I prefer to rule that Mr [Citizen], [Mr John Citizen] has standing and simply substitute him for her in the application.

Counsel: Yes.

Magistrate: So the matter doesn't have to start again, otherwise Mr Dungey, no doubt, will get instructions to start on his behalf.

Counsel: Yes.

Magistrate: And we'd just simply start the whole process again.

Counsel: Yes. I don't have a problem with that.

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Magistrate: Any problem in substituting him for her?

Counsel: No, I don't have any problem with that, your Honour.

69 After that interchange, there was no repetition of the earlier argument to the effect that Mr Citizen lacked standing. It therefore seems clear that whatever was the intention of counsel for the CEO in the course of those proceedings, the order that was made by the Magistrate, which was the substitution of Mr Citizen for Mrs Citizen, was made by consent of counsel for the CEO and on the basis of her concession that he was a person who was deemed to have been a party to the proceedings under the Child Welfare Act 1947.

70 That order having been made by consent, and on the basis of a concession that Mr Citizen had the necessary standing, it is extraordinary that the CEO now seeks leave to appeal from the order to which counsel consented.

71 Section 42 of the Children's Court of Western Australia Act 1988 provides where the Children's Court:

when constituted so as not to consist of or include a judge, makes any finding, order, or other decision on the hearing of an application under Part 4 or 5 of the Childrens and Community Services Act 2004, the finding, order or decision may be the subject of an appeal made in accordance with Part 2 of the Criminal Appeals Act 2004.

72 It seems to me that there is a serious question as to whether this application falls within the scope of that section and in particular whether there has been any finding, order or other decision on the hearing of an application under Pt 4 or Pt 5 of the Children and Community Services Act 2004. That application has not yet been heard.

73 There is I think available an argument to the effect that the proper construction of s 42 is to restrict appeals to determinations of the Court that have a degree of finality or conclusiveness to those determinations. That is consistent with the relevant provisions of the Criminal Appeals Act 2004 (WA) which provide in the case of appeals from Courts of Summary Jurisdiction that 'a decision' is to mean decisions which, in the main, have that element of finality in relation to them (see s 6 of the Criminal Appeals Act 2004; see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321). And in this case, the only order that has been made by the Children's Court is an order substituting Mr Citizen for Mrs Citizen as the applicant in the pending proceedings.

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74 However, rather than resolve this case on the question of lack of appellate jurisdiction, which was not argued, it seems to me to be preferable to assume that there is jurisdiction to determine the application for leave to appeal and to proceed to determine the substantive issues raised by the appeal. I take that view because the substantive matter is to be heard again in the Children's Court in two days, and it is desirable for the Children's Court to know the view taken in this Court on the question of its jurisdiction.

75 It is apparent from the evidence to which I have referred that it is my view that this case should be resolved as quickly as possible and a determination made as to whether it is in the best interests of Barry that the previous care and protection order be revoked and he be restored to the care and control of his grandparents.

76 It is for that reason also that while it seems to me that there would be very good reasons to refuse leave to appeal in this case, particularly given that the order under appeal was made by consent, that is not a course I should follow in this case because the refusal of leave would itself give rise to an entitlement to review. It is therefore preferable for me to grant leave and to determine the substantive issue that has been raised.

77 That returns me to s 30(3)(b) of the Child Welfare Act 1947. The effect of that section is to deem 'any person who is alleged to have contributed by action or neglect towards the need of the child for care and protection' to be a party to the proceedings under that Act.

78 The expression 'child in need of care and protection' is defined by s 4 of the Child Welfare Act 1947. It is clear from the various paragraphs of that section that the only section that could conceivably have applied to the circumstances in which Barry found himself in 2001 when the application was brought, and in 2002 when the order was made, was that he had been in the custody of a person whom the court considers was unfit to have that guardianship or custody. This was conceded by counsel for the CEO during argument.

79 I note that s 4(1) of the Child Welfare Act 1947 makes specific reference to near relatives taking care of a child. The expression 'near relative' is defined to include grandparents. Section 4(4) of that Act also refers to persons standing in loco parentis to a child if that person is responsible for 'providing for the day to day needs of the child' or was a person 'with whom the child habitually resides'.

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80 On the evidence that was before the Magistrate and the only evidence that is before this Court, for the first month of Barry's life he was in the custody of Mr and Mrs Citizen, who were near relatives, and who were in loco parentis or (in English) who were standing in the place of his parents. The only basis therefore upon which an application could have been made for a care and protection order was the proposition that Mr and Mrs Citizen were unfit to have him in their custody. That proposition could only have been advanced because of Mr Citizen's prior convictions.

81 Therefore, the Department must be taken to have alleged at the time it brought the care and protection proceedings in 2001 that Mr and Mrs Citizen were not persons who were fit to have the continuing custody of Barry. That can be the only basis upon which the Court could have concluded that Barry was in need of care and protection, because it was plain from the evidence before the Magistrate that they were at all times ready, willing and able to care for him.

82 It follows in my view that it must be concluded that Mr and Mrs Citizen were persons who, for the period of 2001 and 2002, were alleged to have contributed by action or neglect towards the need of Barry for care and protection because they were not appropriate persons to have him in their custody, because of Mr Citizen's prior convictions.

83 It follows that on the natural and ordinary meaning to be given to s 30 of the Child Welfare Act 1947 Mr and Mrs Citizen were deemed to have been parties to the care and protection proceedings. It also follows that under s 67 of the Children and Community Services Act 2004 they are persons who are entitled to apply for revocation of the protection order.

84 For those reasons I will grant the CEO leave to appeal from the decision of the Magistrate and dismiss that appeal. This means that it will be within the jurisdiction of the Children's Court to determine, after hearing all the relevant evidence, whether Barry continues to be a child in need of care and protection.