Director-General, Department of Human Services; in Re: "Thomas2"
[2011] NSWSC 403
•28 March 2011
Supreme Court
New South Wales
Medium Neutral Citation: Director-General, Department of Human Services; in Re: "Thomas2" [2011] NSWSC 403 Hearing dates: 28 March 2011 Decision date: 28 March 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Secure accommodation and restraint order in respect of child discharged.
Catchwords: CHILDREN - parens patriae jurisdiction - child attains age of 18 - application to Guardianship Tribunal made - guardianship order made - orders of Guardianship Tribunal supersede orders of court - held: secure accommodation and restraint order discharged. Category: Principal judgment Parties: Director-General, Department of Human Services
Minister for Community Services
"Thomas"Representation: Counsel:
Mr G Moore (Department of Human Services)
Ms Miller (independent legal representative for child)
Solicitors:
IV Knight, Crown Solicitor (Department of Human Services)
Leonie Miller ("Thomas")
File Number(s): 2010/410307
Judgment ( ex tempore)
HIS HONOUR: On 9 December 2010, I made a secure accommodation and restraint order in respect of Thomas that was expressed to be until further order and has therefore continued until today. In the meantime, the matter has returned before the court on several occasions for periodical review, particularly as it was known that Thomas would attain eighteen years of age yesterday.
The availability of the parens patriae jurisdiction of the Court, in respect of Thomas after he attains eighteen years of age, is doubtful. With that in mind, application was made to the Guardianship Tribunal, which last Friday 25 March 2011 made a guardianship order in respect of Thomas, appointing the Public Guardian as his guardian for a period of twelve months, with functions in respect of: access (to decide what access Thomas has to others and the conditions of access); accommodation (to decide where he may reside, including the power to authorise others to take Thomas to a place approved by the Guardian and keep him there); health (to decide what health care he may receive); medical and dental consent (to make decisions about medical or dental treatment where Thomas is not capable of giving a valid consent); restrictive practices (to make decisions about restrictive practices for Thomas as specified in the Behavioural Intervention Support Plan, or other less restrictive practices); and services (to make decisions about services to be provided to him).
Those orders are subject to conditions that the Guardian take all reasonable steps to bring Thomas to an understanding of the issues and to obtain and consider his views before making significant decisions. Additionally, the Guardian may only consent to restriction of his freedom of movement, the administration of psychotropic medicine or other practices for the purpose of addressing challenging behaviours, within the context of the implementation of a comprehensive and positive behaviour intervention and support program, or within the context of positive programming addressing his lifestyle and school development needs. It is envisaged that the Guardianship Tribunal will be asked to review the matter before the guardianship order expires after twelve months.
The orders now made by the Guardianship Tribunal will effectively supersede those made by this court, upon Thomas attaining eighteen years of age. They are practically to the same effect and are directed to the same ends. It is therefore appropriate that I discharge the existing orders of this court, and that the further management of Thomas' case rest with the Guardianship Tribunal.
I would like to take this opportunity to record my appreciation for the assistance the court has received from, on the one hand the Crown Solicitor and Mr Moore of Counsel, and on the other Ms Miller as independent legal representative for the child, over the many times over the last several years that Thomas' matter has been before the court. Furthermore, I would like to also record my appreciation for the efforts of the staff of Sherwood House and Sherwood Cottage in their management of this very difficult case. The results afford grounds for cautious optimism, that Thomas at least has some prospect now of a future, when a couple of years ago he had practically none. I do not pretend that the future will be easy or smooth or without issues; but I do think it can be said that Thomas' situation - partly due to the work of the staff of the two institutions I have mentioned, and partly due to Thomas' own efforts, for which he is to be commended, is considerably more auspicious than it once was.
I discharge the orders made on 9 December 2010. I order that the proceedings be otherwise dismissed.
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Decision last updated: 10 May 2011
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