DT v Chief Executive of the Department for Child Protection

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASC 24
Judgment of the Honourable President Livesey (ex tempore)
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - JURISDICTION
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - MEDICAL TREATMENT
On 8 February 2022, the applicant sought to invoke the parens patriae jurisdiction of the Court; filing an application seeking an immediate injunction to prevent his daughter, in the guardianship of the Chief Executive of the Department for Child Protection, from being vaccinated against COVID-19 and its variants.
By way of interlocutory application dated 22 February 2022, the respondent sought summary dismissal pursuant to Uniform Civil Rules 2020 (SA) (UCR) rr 144.2 or 256.5 on the ground that there is no reasonable basis for the applicant’s action. Alternatively, the respondent sought striking out pursuant to UCR rr 34.1 and 85.1.
Held:
1.The applicant has not identified any reasonable basis for prosecuting or making his application in this Court.

2. The applicant’s action and application for immediate injunctive relief is dismissed.
Uniform Civil Rules 2020 (SA) rr 34.1, 85.1, 144.2, 256.5; Children and Young People (Safety) Act 2017 (SA) ss 84, 157, 158; Children and Young People (Safety) Regulations 2017 (SA) reg 40A; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 23, 34; Guardianship and Administration Act 1993 (SA) s 29, referred to.
Bechara v The State of South Australia [2021] SASC 126; Chignola v Chignola (1971) 9 SASR 470; Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by His Next Friend) (2010) 107 SASR 343 ; DK v The Public Guardian and RT [2018] NSWSC 1547; DT v Chief Executive of the Department for Child Protection [2021] SASC 138; Minister for Education and Child Development v M [2017] SASC 181; Minister of Community Welfare v Broughton (1983) 34 SASR 520; P v NSW Trustee and Guardian [2015] NSWSC 579; Re Frances and Benny [2005] NSWSC 1207; Re Marlie [2021] NSWSC 973; Re Victoria [2002] NSWSC 647; Robert v Bilney (1981) 29 SASR 179, considered.

DT v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2022] SASC 24
Civil - Application
LIVESEY P:
Introduction

This is an urgent application by the respondent seeking summary dismissal pursuant to rr 144.2 and 256.5 of the Uniform Civil Rules 2020 (SA) on the grounds that there is no reasonable basis for the applicant’s action or alternatively, the respondent seeks striking out pursuant to rr 34.1 and 85.1 on essentially the same basis.
The applicant commenced these proceedings on 8 February 2022 seeking an immediate injunction to prevent his daughter from being vaccinated for

COVID-19 and its variants. He relies on this Court’s parens patriae jurisdiction. His affidavit evidence contains materials suggesting that COVID-19 vaccines are “currently experimental with only limited short-term and no long-term adult safety data available”. He maintains that potential late-onset effects can take months or years to become apparent.
Once these proceedings were commenced, the respondent undertook not to proceed with vaccinations booked for 14 February and 28 March 2022 pending the determination of these proceedings. Whilst the respondent has not yet proceeded with these vaccinations, she is concerned to proceed with them as soon as practicable so as to provide the child with what she regards as the best available protection against the COVID-19 pandemic.
Guardianship
The applicant’s daughter was taken into care on 31 August 2018 and has remained in the guardianship of the Minister for Child Protection or the respondent pursuant to orders granted by the Youth Court of South Australia. The latest of these is an order made on 14 December 2020 whereby the child was placed under the guardianship of the respondent until she attains 18 years of age.
An appeal against that order was dismissed on 3 December 2021.[1] A further appeal to the Court of Appeal has been commenced.
[1] DT v Chief Executive of the Department for Child Protection [2021] SASC 138.
The contentions of the parties
In essence, the respondent maintains that this Court’s parens patriae jurisdiction is curtailed by the statutory scheme operating under the Children and Young People Safety Act 2017 (SA) (the Act) which provides for the review of decisions made by the child’s guardian. In the alternative, the existence of that alternate statutory jurisdiction for review “weighs heavily against the exercise of the Court’s discretion to grant any relief”. For the applicant, it is contended that the Court is not deprived of its inherent, protective jurisdiction, nor of its supervisory role over inferior courts and tribunals, and this is an appropriate, exceptional case in which the parens patriae jurisdiction may be exercised to provide urgent relief.
The Children and Young People Safety Act 2017 (SA)
By s 68 of the Act, the respondent’s rights of guardianship operate to the exclusion of the rights of any other person:
If the Court places a child or young person under the guardianship of the Chief Executive or any other person or persons under section 53, the Chief Executive or the other person or persons is, or are, the lawful guardian, or guardians, of the child or young person to the exclusion of the rights of any other person.
These rights have been described as encompassing all the rights and duties of a parent, including the right to control custody of and access to the child.[2]
[2] Minister for Education and Child Development v M [2017] SASC 181, [53] (Blue J) concerning s 43 of the repealed Children’s Protection Act 1993 (SA) which is in materially the same form as s 68 of the Act.
Section 84 of the Act sets out a non-exhaustive list of the actions the Chief Executive may take with respect to a child in her guardianship. These are necessarily subject to the exercise of her discretion. They include making arrangements for the professional examination, assessment or treatment of a child or young person (s 84(1)(g)), and making such other provision for the care of the child or young person as the circumstances of the case may require (s 84(1)(h)). These powers must be exercised having regard to the Act as a whole, including the paramount consideration that children are to be protected from harm, see ss 7 and 84(3)(b).
Importantly, by s 157 of the Act, a person aggrieved by a decision of the Chief Executive is “entitled to a review of the decision under this section”. Thereafter, the South Australian Civil and Administrative Tribunal (the Tribunal) is, “by force of this section, conferred with jurisdiction to deal with matters consisting of the review of the following decisions… under Chapter 7”, pursuant to s 158 of the Act. That review must be commenced “within 28 days after the applicant receives notice of the results of the relevant review under section 157”, pursuant to s 158(4). The Tribunal’s review jurisdiction over decisions made under Chapter 7 of the Act extends to decisions concerning placement, decisions made pursuant to s 84, and decisions made regarding licensing and regulation of foster carers or other care providers, see s 158(1)(a), but not contact arrangements under Part 4.
The applicant may be a child or young person to whom the decision relates, or it may be any other person aggrieved by the relevant decision who, in the opinion of the Tribunal, has a sufficient interest in the matter, see reg 40A of the Children and Young People (Safety) Regulations 2017 (SA).
When exercising its review jurisdiction, the Tribunal proceeds by way of rehearing to examine the decision, though it must reach the correct or preferable decision having regard to and giving appropriate weight to the decision of the original decision maker, see s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act). The President of the Tribunal may constitute the Tribunal as is appropriate for the matter at bar, see s 23 SACAT Act.
The Tribunal has specialist expertise in the exercise of powers of guardianship and the provision of medical treatment, for example, regarding people with impaired decision-making capacity. See, for example, s 29 of the Guardianship and Administration Act 1993 (SA).
The parens patriae jurisdiction
This Court has broad powers in its parens patriae jurisdiction to make orders concerning the protection or education of children.[3] These powers extend to providing for medical treatment for children who might not otherwise receive it.[4]
[3] Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by His Next Friend) (2010) 107 SASR 343, [30]-[37] (White J). See also Justice Brereton, “Origins and Evolution of the Parens Patriae Jurisdiction” (Lecture, Sydney Law School, 5 May 2017).
[4] Re Marlie [2021] NSWSC 973.
In Chignola v Chignola, Bray CJ referred to the reasons of Sangster J before explaining:[5]
I agree that it is the equitable jurisdiction formerly vested in the Lord Chancellor, and subsequently the Court of Chancery, exercising the prerogative of the Crown as parens patriae, that primarily concerns us. That jurisdiction was an inherent jurisdiction of the Court of Chancery and this Court now possesses it. To be more precise the jurisdiction is that formerly vested in the High Court of Chancery (Supreme Court Act s. 17(2)(a)(i) and by “formerly” is meant prior to the English Supreme Court of Judicature Act 1873 (Supreme Court Act, s. 5).
[5] Chignola v Chignola (1974) 9 SASR 479, 480 (Bray CJ).
There are cases where the exercise of the jurisdiction has been effectively curtailed by the existence and operation of a statutory scheme which furnishes the lawful guardian of a child with statutory authority. For example, in Minister of Community Welfare v Broughton, the Full Court considered the interaction between the Court’s inherent jurisdiction (in parens patriae) and the

Children’s Protection and Young Offenders Act 1979
(SA).[6] Section 22 of that Act provided:
While a child is under the guardianship of the Minister… the Minister… is the lawful guardian and entitled to the custody of the child to the exclusion of the rights of any other person.
[6] Minister of Community Welfare v Broughton (1983) 34 SASR 520.
The question for the Court in that case was whether the inherent

parens patriae
jurisdiction was ousted by the operation of s 22 of that Act. The Court held that jurisdiction was curtailed, not ousted. According to Zelling J:[7]
… as Jacobs J. noted in Roberts v Bilney[8] the words of the [Children’s Protection and Young Offender’s Act 1979 (SA)] do not evince a clear and unequivocal intention wholly to oust the inherent jurisdiction of this Court. Jacobs J., however, went on to say:
“To hold, however, that the jurisdiction of this Court is not ousted is not to hold that the jurisdiction can still be freely exercised at the suit of any person interested under the Guardianship of Infants Act or who otherwise might invoke the inherited equitable jurisdiction of this Court. In particular, there seems to me to be cogent reasons, both of law and of policy, why this Court should be slow indeed to exercise its jurisdiction at the suit of a person who is a party to proceedings under Part III of the Children’s Protection Act, and who has a right under that Act not merely to apply to the Children’s Court for variation of an order made by that Court, but to appeal to this Court either from an original order or any order or adjudication on an application to vary. The procedures envisaged in the Children’s Protection Act appear to evince a clear intention that, as least to the extent of the powers conferred on the Children’s Court, and on this Court upon appeal from the Children’s Court, there is a separate statutory code for children in need of care who are declared to be such, after due enquiry by a Children’s Court; that the curial supervision of the Minister is to be exercised by that Court, or by this Court by way of appeal; and that the original jurisdiction of this Court ought to be involved and exercised, if at all, only to fill in gaps or supplement powers.”[9]
With respect, I agree with that exposition of the interaction of the Children’s Protection and Young Offenders Act and the inherited jurisdiction of this Court over infants and the protective jurisdiction conferred upon it by the Guardianship of Infants Act.
[7]    Minister of Community Welfare v Broughton (1983) 34 SASR 520, 529-530 (Zelling J).
[8]    Roberts v Bilney (1981) 29 SASR 179, 189 (Jacobs J, with whom King CJ and Zelling J agreed).
[9]    Roberts v Bilney (1981) 29 SASR 179, 190 (Jacobs J, with whom King CJ and Zelling J agreed).
It may be that Wells J went further in finding that it was “not competent to invoke the general jurisdiction of this Court, enlarged … by the Guardianship of Infants Act”.[10] The respondent contends that this decision is binding and, though the words of s 68 of the Act are not identical to s 22 of the Children’s Protection and Young Offenders Act 1979 (SA), they have the same effect.
[10] Minister of Community Welfare v Broughton (1983) 34 SASR 520, 533 (Wells J)
By contrast, the applicant relies on a number of interstate cases, primarily from New South Wales. In P v NSW Trustee and Guardian, Lindsay J explained that there was nothing in the various New South Wales legislation which deprived the Court of its inherent, protective jurisdiction.[11] As his Honour emphasised:[12]
The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection “as an individual” is respect for his or her autonomy.
[11] P v NSW Trustee and Guardian [2015] NSWSC 579, [111] (Lindsay J). This was followed in DK v The Public Guardian and RT [2018] NSWSC 1547, [43] (Kunc J).
[12] P v NSW Trustee and Guardian [2015] NSWSC 579, [52] (Lindsay J).
In addition, in Re Frances and Benny, Young CJ in Eq emphasised the Supreme Court’s supervisory role over inferior courts and tribunals, together with the recognised exercise of power in the parens patriae jurisdiction where a protective order is required to be made urgently so as to provide “instant relief”.[13]
[13] Re Frances and Benny [2005] NSWSC 1207, [18] (Young CJ in Eq), followed in DK v The Public Guardian and RT [2018] NSWSC 1547, [45]-[46] (Kunc J).
The applicant emphasises the breadth of the parens patriae jurisdiction, concerned as it must be with “what is in the best interests of the child as matters stand”.[14] Indeed, the applicant emphasises that an order made by this Court in its parens patriae jurisdiction may not necessarily set aside any earlier order made by a statutory Court, even though the effect of this Court’s order may be to supersede the earlier order or, in an appropriate case, grant an injunction restraining the statutory Court from enforcing its earlier, inconsistent order.[15]
[14] Re Victoria [2002] NSWSC 647, [37] (Palmer J).
[15] Re Victoria [2002] NSWSC 647, [38] (Palmer J).
Resolution of the application
There can be no question about the ostensible right of the respondent, as guardian, to proceed with vaccination.
The burden of the respondent’s present application is not directed to whether that is, or is not, an appropriate course to take. The respondent contends that that is not a decision for this Court to make. Rather, the respondent is concerned with whether any review of that decision should be undertaken in this Court or in the Tribunal.
It may be accepted that, in the ordinary course, this Court would be mindful of the statutory mechanisms by which a guardianship order is made and the opportunities offered for any review of decision-making by the guardian. In most cases, as the legislation demonstrates, they are matters for review in the Tribunal, not this Court.
That is not to say that the existence of these statutory mechanisms ousts or curtails the inherent jurisdiction. Rather, they have an important bearing on whether the jurisdiction should be exercised. I am reluctant to say that there will only be an exercise of jurisdiction in exceptional circumstances. In my opinion the parens patriae jurisdiction can be invoked where it is appropriate to do so. There may be cases where the parens patriae jurisdiction can be invoked, for example, because the review processes available in the Tribunal are not available or perhaps not available sufficiently quickly. That might be especially so in cases where the evidence discloses that the child is at serious risk of imminent harm. The applicant might then be in a position to demonstrate that this Court represents the only setting in which the guardian’s decision-making can be reviewed. In cases such as those, this Court’s concern with the best interests of the child might well warrant intervention notwithstanding the ordinary statutory processes available to those with an interest in the welfare of the child.
I accept that if there is no reasonable prospect that a Judge of this Court would exercise the parens patriae jurisdiction and grant relief, the action is liable to be dismissed.[16] However, that is a power which ought not be exercised lightly and only in a clear case.
[16] See Bechara v The State of South Australia [2021] SASC 126, [16] (David JA).
In this case, no attempt has yet been made by the applicant to demonstrate that the statutory review processes are not available, or not available sufficiently quickly, to enable a review of the guardian’s decision-making under s 84 of the Act. As well, the material on which the applicant relies does not demonstrate that vaccination poses any immediate, serious risk to the health of the child.
In my view, this is a clear case. I am satisfied that no reasonable basis for prosecuting the claim or making the application in this Court has been demonstrated.
On the basis of the respondent’s undertaking that no vaccination will proceed pending the first hearing of any review commenced under s 158 of the Act, there will be an order dismissing the applicant’s action and application for immediate injunctive relief.
The parties have liberty to apply.
I decline to give leave to appeal.

[2022] SASC 24

11 March 2022