EC v Secretary, NSW Department of Family and Community Services

[2019] NSWSC 226

Supreme Court

New South Wales

Medium Neutral Citation:	EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226
Hearing dates:	22 February 2019
Decision date:	08 March 2019
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	Appeal Dismissed – See para [89]
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under state legislation – legal proceedings – appeal from Presidential Children’s Court – application by Barnardos to be joined to proceedings – application under s 98(3) of the Children and Young Persons (Care and Protection) Act 1998 – whether a corporation can be a ‘person’ under s 98(3) – whether Barnardos had a ‘genuine concern for the safety, welfare and well-being’ of the children – whether Court should exercise its discretion under s 98(3)
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) Acts Interpretation Act 1987(NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Children’s Court Act 1987 (NSW) Children’s Court Regulation 2014 (NSW)
Cases Cited:	K&S Lake City Freighters Pty Ltd v Gordon & Gotch [1985] 157 CLR 309 EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248 Bells-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701 In the Matter of Pamela, 31 March 2003 Minister for Disability Services v People with Disability Australia Inc (CSD) [2010] NSWADTAP 44 NEJ [2017] NSWCATGD 1 EBI [2017] NSWCATGD 6 MZT [2018] NSWCATGD 8 QVC [2017] NSWCATGD 20 HZN [2018] NSWCATGD 31 NZD [2017] NSWCATGD 21
Texts Cited:	n/a
Category:	Principal judgment
Parties:	E (First Plaintiff/Appellant) F (Second Plaintiff/Appellant) Secretary, NSW Department of Family and Community Services (First Defendant) Minister for Family and Community Services (Second Defendant) L (Third Defendant) N (Fourth Defendant) J (Fifth Defendant) Barnardos Australia (Sixth Defendant)
Representation:	Counsel: P Singleton (Appellants) J Harris (1st & 2nd Defendants) Ms D Ward (3rd Defendant) No appearances (4th & 5th Defendants) Ms G F Mahony (6th Defendant)   Solicitors: Legal Aid NSW (Appellants) Ms A Hall, Crown Solicitors Office (1st & 2nd Defendants) Mark Whelan Lawyer (3rd Defendant) No appearances (4th & 5th Defendants) Ms J Smith, Care legal (6th Defendant)
File Number(s):	2019/24451

Judgment

Background Facts

Nature of the case

1. An appeal is brought before this Court under s 91 of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the Act”) from a decision of the President of the Children’s Court of NSW. By summons filed 17 January 2019, the Appellant children (the children in the proceedings as represented by the Independent Legal Representative (“ILR”)) (“the Appellants”) have appealed the decision of 21 December 2018, of his Honour Judge Johnstone, to grant leave to the Sixth Defendant (Barnardos Australia) (“Sixth Defendant”) under s 98(3) of the Act:

1. To appear in the proceedings,

2. To be legally represented, and

3. To examine and cross examine any witnesses on matters relevant to the proceedings.

2. The proceedings in question concern an application for rescission of a care order and effectively restoration of the children “E” and “F” (“Care Proceedings”). Once the appeal in this Court is determined, the care proceedings in the Children’s Court will continue. The matter is next listed for mention in that Court on 14 March 2019. It is expected that certain expert reports to be prepared for those proceedings, will impact the final position of the various parties in relation to the proposed application for restoration [T3/18-T4/35].

3. Because this is an appeal from the Presidential Children’s Court, it is heard by the Supreme Court of NSW (s 22A of the Children’s Court Act 1987 NSW and Reg 5 of the Children’s Court Regulation 2014 NSW). This Court may confirm, vary or set aside the decision of the Children’s Court (91(5) of the Act).

4. Section 91 relevantly is in the following terms:

Section 91:

(1)    A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2)    An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3)    Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4)    In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)    Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6)    The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.

(7)    Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8)    The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.

5. The right to appear in care proceedings in the Children’s Court is governed by s 98, which is set out below:

98   Right of appearance

(1)  In any proceedings with respect to a child or young person:

(a)     the child or young person and each person having parental responsibility for the child or young person, and

(b)     the Secretary, and

(c)     the Minister,

may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

(2)    However, if the Children’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented.

(2A)    If the Children’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court is to appoint a guardian ad litem for the person under section 100 or 101 (as the case may require).

(3)    In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings.

Parties

6. As I have noted earlier the Appellants in these proceedings are the two children “E” and “F”, who are the children the subject of the care proceedings, and are represented by an ILR. The First and Second Defendants is the Secretary, New South Wales Department of Family and Community Services (“FACS”) and the Minister for Family and Community Services (FACS) respectively. The Third Defendant is E and F’s birth mother. The Fourth Defendant is E’s birth father and the Fifth Defendant is F’s birth father, neither of whom made an appearance in the matter before this Court.

7. The Sixth Defendant is Barnardos Australia (“Barnardos”). Barnardos is a registered charity and is a public company limited by guarantee. Barnardos is a ‘designated agency’ as defined by s 139 of the Act. Under s 79(4A) of the Act, a designated agency cannot be allocated parental responsibility, however under s 249 and s 250, the Minister or Secretary may delegate any of the Minister’s functions, including the power to exercise parental responsibility. This does not mean that parental responsibility has transferred, but rather the authority to exercise aspects of parental responsibility can be delegated. Barnardos is responsible for supervising care placements and supporting children and their carers. Barnardos’ role in care and protection matters is therefore relevantly guided by its own Constitution and Strategic Directions, as well as the Act. Further, the relationship between Barnardos and FACS is subject to the Instrument of Delegation made by the Minister on 24 April 2017 (“Ministerial Delegation”) and the Deed between the parties executive on 9 May 2018 (the “Deed”). The Minister has relevantly delegated parental responsibility to Barnardos in para 22.95 of the Ministerial Delegation. The Deed regulates the performance of the powers delegated by the Minister and contains for example, obligations of cooperation. The Deed is not however the source of any powers exercised by Barnardos.

Background to proceedings    

8. The children were assumed into care in January 2013. On 11 July 2013, final Care Orders were made by the Children’s Court allocating parental responsibility to the Minister until each child attains 18 years of age. On 5 September 2013 Barnardos’ Case Manager, Ms Palacios, assumed casework responsibility for both children, and both children were placed in the care of Ms G and her then partner. The children currently remain in the care of Ms G who has been their primary carer for the past five and a half years. On 18 September 2013, Barnardos was appointed the out-of-home care designated agency for the children.

9. An application for the adoption of the children was filed with the Supreme Court on 30 May 2016. Following a Preliminary Hearing on 1 November 2016 before Justice Brereton, his Honour required an independent assessment of the children. Ms Howell was contracted to undertake this task.

10. On 5 July 2017, Ms G informed Ms Palacios that she and her partner had separated. Because of the change in circumstances, Barnardos withdrew the adoption application.

11. On 7 December 2017, a s 90 Application was filed by the Third Defendant, seeking restoration of the children to her care. The Third Defendant was granted leave by the Children’s Court on 16 February 2018 to proceed with her application. Following on from the recommendation in Ms Howell’s report, FACS prepared care plans, which were filed on 13 June 2018, supporting the Third Defendant’s application.

12. On 8 March 2018, Ms G was approved as a single authorised carer and a prospective adoptive parent. On 26 March 2018, Barnardos held a Review of Arrangements meeting for the children and recommended a long-term care order with a view to adoption.

13. The final hearing for the care proceedings is expected to take place sometime in 2019 in the Children’s Court of NSW.

Children’s Court Decision

14. On 8 August 2018, the Sixth Defendant made an application under s 98(3), seeking to appear as a party in the care proceedings. Judge Johnstone, President of the Children’s Court, heard the application to appear on 21 December 2018.

15. The Third Defendant and the Appellants opposed the application to appear. The Fifth Defendant supported the application. The Fourth Defendant did not participate. The First and Second Defendants did not seek to be heard on the issue.

16. It was uncontroversial among the parties that s 98(3) involved a two-pronged test. First the applicant for leave must be a “person with a genuine concern for the safety, welfare, and well-being of the children”. Secondly, whether the Court should exercise its discretion in granting leave having regard to all the circumstances of a particular case [38].

17. Those opposing the application contended that the Sixth Defendant could not be said to have a ‘genuine concern’ for the children, that it was not a ‘person’ within s 98(3) as it was not a ‘natural person’, that the contractual relationship between the Sixth Defendant and FACS provided that the Sixth Defendant should not be joined as a party in any proceedings, and that in any case the Court should not exercise their discretion to join the Sixth Defendant to the proceedings. A further point was raised concerning the relationship between s 98(3) and s 87 (the right of a person to be heard in certain circumstances) of the Act, in order to emphasise the “child centred” provision of s 98 [41].

18. Judge Johnstone relevantly found that the Sixth Defendant did have a ‘genuine concern’ as evidenced through its employees and agents, and the fact that it had been specifically contracted to care for the children [50]. His Honour found that there was nothing in the legislation that expressly excluded corporations or designated agencies from being ‘persons’ within s 98(3) at [57]. In construing the contractual relationship, the Judge found that there was nothing to preclude an application to appear by the Sixth Defendant at [64]. He found none of the arguments put in opposition to the joinder of the Sixth Defendant had any merit [49], [57], [66].

19. His Honour was also satisfied that the Sixth Defendant’s position could not effectively be advocated by other parties. Commenting on the suggestion that the First and Second Defendant, as a model litigant, will present all appropriate evidence, including any material to be relied upon by the Sixth Defendant, his Honour stated at [74]:

These submissions are less than convincing. They ignore the realities of litigation, albeit non-adversarial litigation. It is not just the written material that might be presented, but it is also the nuances of cross-examination that come to bear in the determination of such conflicting viewpoints as are likely to emerge at the hearing of this dispute.

20. His Honour went on to state that excluding a voice that had a detailed knowledge of the history in this particular case would not be acting in a way that ensures the safety, welfare and well-being of the children [76]. His Honour stated that even if the granting of leave had the potential to cause delay, or have policy ramifications for future care proceedings (although he was not convinced that this would be the case) the importance of the evidence was such, that these considerations were not sufficient to persuade the Court against exercising its discretion [82].

Submissions

21. In the proceedings before this Court, the Appellants, First and Second Defendants together, the Third Defendant and the Sixth Defendant each appeared and filed submissions. The Fourth and Fifth Defendants as I have noted did not appear.

22. At the outset of proceedings, the parties were invited to inform the Court of their current position with respect to the care of the children. Although the application currently before this Court concerned the discrete question of Barnardos’ ‘application for leave to appear’, the position of the parties at the moment is relevant in my view to the ultimate decision of whether to grant leave. The Appellants as well as the First and Second Defendants, indicated that their position would be reserved until after the further expert reports were finalised [T3/18-T4/35]. The Third Defendant indicated that she would continue to seek restoration [T3/38-41]. The Sixth Defendant indicated that they were seeking a long-term care order with a view to adoption [T3/47-50].

23. There was general consensus that s 98(3) broadly involved a two-step process. Firstly determining whether the applicant in question was ‘a person who had a genuine concern for the safety, welfare and wellbeing of the child’ and secondly whether or not the Court should exercise its discretion to grant leave for the applicant to appear as a party. It was agreed that granting leave to appear would operate as essentially joining a party to proceedings.

24. The submissions of the parties on the application to appear are outlined briefly below.

Appellants

25. The Appellants appealed the granting of leave for the Sixth Defendant to appear in the care proceedings. They submitted that the proper construction of s 98(3) should not permit Barnardos to be joined to the proceedings and that in any case the Court should not exercise its discretion to grant them leave.

26. The Appellants’ submitted that:

1. The term ‘person’ in s 98(3) means ‘natural persons’ [App sub [20]],

2. Whether or not the Sixth Defendant has a ‘genuine concern’ can only be assessed by looking at the true relationship – legal and factual- between the applicant and the child [App sub [21]]. The Sixth Defendant as a corporation can have no personal relationship, unlike say a grandparent, and standing under s 98(3) cannot be obtained vicariously through its employees [App sub [23]]. The Sixth Defendant is not providing day to day care of the children [App sub [27]] and essentially performs a supervisory role [App sub [29]]. Under s 79(4) the Sixth Defendant cannot be delegated parental responsibility for the child [App sub [23]] and it is therefore unclear what the Sixth Defendant’s base their ‘genuine concern’ on in this case. Further, the role of the Sixth Defendant is constrained by its contractual relationship with the Minister, as governed by the Deed and Ministerial Delegation, and thus the agency’s true ‘concern’ is adhering to the requirements of this arrangement [App sub [32-35]], and

3. Considering the discretionary factors, the Appellants submitted that the following weighed against the granting of leave:

1. The Sixth Defendant has no relevant reason to be joined. All the relevant information that it may have will be disclosed to the Court through the Secretary acting as a model litigant [App sub [38]]. The Sixth Defendant has already had the opportunity to file affidavits advancing their position [App sub [39]]. Further, it is the ILR and not the Sixth Defendant that is the proper voice of the children in the Children’s Court [App sub [40]],

2. The Sixth Defendant is seeking that parental responsibility remains with the Minister. It is inappropriate for the Court to grant leave to enable a party to urge such an outcome contrary to the views of the Minister [App sub [43]],

3. That granting leave for the Sixth Defendant to pursue a view contrary to the First and Second Defendant would breach the terms of the Deed and Ministerial Delegation [App sub [44]-[45]],

4. That there are unfortunate policy ramifications that could flow from the Sixth Defendant becoming a party to the proceedings. Namely, the Sixth Defendant could later be required to implement a decision that it had opposed, and participating in proceedings could undermine the ongoing relationship between Barnardos and the birth mother and Barnardos and the Secretary [App sub [47]],

5. There was a likely chance of delay [App sub [51(1)]],

6. The Sixth Defendant did not have an arguable case in that it faced a significant hurdle to ultimately persuade the Court that restoration was not in the childrens’ best interests [App sub [51(2)]],

7. That given more expert evidence is forthcoming, it cannot be said that another party will not advance the Sixth Defendant’s case [App sub [51(4)]].

27. During oral argument, Counsel for the Appellants submitted that merely being a designated agency to whom a child’s welfare has been assigned does not automatically make the designated agency a person with a genuine concern. Rather, it is necessary to show a genuine concern for the particular children who are the subject of the proceedings [T7/29-33]. It was submitted that the Sixth Defendant had failed to show any evidence in this case demonstrated a ‘genuine concern’ for the children.

28. The Appellants contended that even if the Sixth Defendants ‘could’ be granted leave to appear, the Court should exercise its discretion to refuse the application. Counsel argued that in exercising its discretion, the Court should focus on the factors weighing for and against granting leave. Although the Appellants accepted that the Sixth Defendant would be in a better position to put forward their view [T14/33], they continued to argue that the Appellants and the Secretary would be able to properly inform the Court of all relevant information [T14/26] and that the Children’s Court would be aware of all alternative outcomes available to them [T19/36]. They further expressed concern over an ‘opening of the flood-gates’, whereby any designated agency would be able to intervene in any care proceedings [T17/26-30]. They contended that, in the absence of substantive reasons to grant leave, the balance weighs in favour of leave being refused.

Third Defendant

29. The Third Defendant opposes the application. The Third Defendant focused her submissions on whether the Court should exercise its discretion to grant leave [Third Def sub [25]].

30. The Third Defendant submitted that:

1. The Sixth Defendant does not need to appear to have its position heard [Third Def sub [34]]. The First and Second Defendants have afforded the Sixth Defendant the opportunity to file relevant affidavits. Barnardos has already been participating in various care plan reviews [Third Def sub [35]-[41]],

2. Granting leave to the Sixth Defendant is not necessary to ensure the children’s voices are heard [Third Def sub [47]-[50]], and

3. Were leave to be granted, this Court should limit the leave. The Sixth Defendant is not in a position to lead evidence about the Third Defendant’s parenting capacity [Third Def sub [53]-[55]].

31. During oral argument, Counsel focused on the balancing exercise between the factors weighing for and against the discretionary grant of leave. The Third Defendant submitted that the reasons advanced by the Sixth Defendant to appear were insufficient. It was unclear what position the Appellants or the First and Second Defendants may take, and these final positions may not be known until the close of evidence [T29/24]. Therefore, it was unclear whether the Sixth Defendant would be the only party opposing restoration. Further, although the Sixth Defendant purported to advance the ‘wishes of the children’, Counsel noted wishes are complex, and would in fact be best advanced through the expert evidence [T31/45]. Counsel went on to state that there was likely to be significant delay from granting leave as the Sixth Defendant had not given any kind of indication of the type of evidence they wished to file [T32/44].

Sixth Defendant

32. The Sixth Defendant submitted that a proper construction of s 98(3) would permit them being joined to the proceedings and that the Court should exercise the discretion in this case.

33. The Sixth Defendant submitted that:

1. The term ‘person’ in s 98(3), should be defined broadly, as including body corporates as well as natural persons [Sixth Def sub [44]],

2. The Sixth Defendant has a ‘genuine concern for the safety, welfare and well-being of the children’ evidenced generally by the agency’s Principle Objectives and ongoing role in care and protection matters [Sixth Def sub, [55]], and in this case specifically through its employees who have been active in the ongoing role in case management of the children’s care [Sixth Def sub [58-60]], and

3. Considering the discretionary factors, the Sixth Defendant submitted that the following weighed in favour of granting leave:

1. Granting leave will not delay the proceedings [Sixth Def sub [67]],

2. There is no other represented party currently advocating for a long-term care order in favour of Ms G and opposing restoration to the mother. The Sixth Defendant has important knowledge of the children’s history in care that would assist the Children’s Court in making a final order [Sixth Def sub [71]],

3. The Sixth Defendant has an arguable case in that, the prospects of the Court finding that restoration is not a realistic possibility is not so remote that the case is not reasonably arguable [Sixth Def sub [86]], and

4. That in order to ensure that the interests of the child remain the paramount consideration, it is necessary to have all evidence before the Court and to have all essential issues fully ventilated by the parties [Sixth Def sub [87]].

34. During oral argument the Sixth Defendant addressed the issue of ‘genuine concern’. Counsel, referred to various authorities within the guardianship context that indicated that corporations could be found to have an objective ‘genuine concern’. It was argued that, reading s 98(3) within the context of s 9 and the paramount principle of safety, welfare and well-being of the child, suggested that the provision should not be given an ‘unduly restrictive construction’ so as to exclude vital evidence that would go to the well-being of the child [T43/26-28].

35. The Sixth Defendant further referred to their Constitution, Strategic Directives and certain historical evidence which demonstrated the agency’s commitment to child protection and child welfare. In particular, Counsel pointed to evidence of Barnardos’ long-standing interest in ‘permanency planning’ [T44/46-50] arguing that their objective concern in supporting the long-term placement in this case was in line with the agency’s objectives. Further, this coupled with the subjective relationship that one case manager employed by the Sixth Defendant has had with the children throughout their history in care [T45/21-29] evidenced a ‘genuine concern’ for the children.

36. Concerning the discretionary factors, the Sixth Defendant reaffirmed that they were currently the only represented party opposing restoration and were the only represented party who had had long term case management of the children. They submitted that there were significant issues such as the attachment of the children to their carer and the current needs of the children that they were in the best position to provide evidence on [T49/34-42], and their participation was needed to properly inform the Court of all available options open to it.

First and Second Defendant

37. Counsel for the First and Second Defendants took no position on the application, however submitted that the proper construction of s 98(3) would permit the Sixth Defendant to appear in the proceedings. The Secretary further put forward submissions to assist the Court in the exercise of its discretion.

38. The First and Second Defendants submitted that:

1. There is nothing in the legislation to suggest that ‘person’ in s 98(3) should be limited to natural persons [First and Second Def sub [51]],

2. The Sixth Defendant could be seen to have a ‘genuine concern’ through the actions of its employees and agents, and those employees have clearly demonstrated a genuine concern for the children’s welfare [First and Second Def sub [71-73]],

3. There is likely to be some delay from granting leave [First and Second Def sub [77]],

4. At this stage, pending the final expert reports, it is difficult to assess the Sixth Defendant’s prospects of success [First and Second Def sub [83]],

5. There is little advantage in having the Sixth Defendant appear in the proceedings. The ILR is the appropriate voice of the children in the Court, and all existing evidence is already before the Children’s Court [First and Second Def sub [85]-[86]]. Although the Sixth Defendant is the only represented party advocating against restoration, it is unclear what the final position of the parties will be [First and Second Def sub [89]],

6. The perceived policy ramifications raised by the Appellants in granting leave, are not sufficient reasons for refusing leave [First and Second Def sub, [91]], and

7. There is nothing in the Deed or Ministerial Delegation that would prevent the Sixth Defendant being granted leave to appear [First and Second Def sub [95]].

39. During oral argument, Counsel submitted that although it provided all relevant information to the Children’s Court in its role as a model litigant, including evidence contrary to its position, this did not mean that every piece of information must be passed through the Secretary [T51/43-45]. They admitted that the Sixth Defendant was in a better position to advance its own case.

Evidence

40. Numerous affidavits were filed and relied upon by the parties. However, submissions made little reference to this evidence, and there was no cross-examination of any witnesses. The affidavits, therefore, have limited value but do play an important role in outlining the historical background to this case.

41. The Appellants filed no affidavits, but relied upon before President Johnstone in the original proceedings including the Ministerial Delegation and the Deed.

42. The Third Defendant relied on the following evidence:

1. In the affidavit of the birth mother, affirmed 30 November 2017, she states that she is the birth mother of E and F, and is seeking restoration as she believes she has made significant progress since they were assumed into care and is now the most appropriate person to care for them.

2. In the affidavit of the birth mother, affirmed 4 July 2018, she reiterates her desire for restoration and believes that the report conducted by Ms Howell on 7 May 2018 is reliable and should be followed.

43. The Sixth Defendant relied on the following evidence:

1. In the affidavit Ms Cheers affirmed on 18 February 2019, Ms Cheers states that she is the Principal Officer of Barnardos and has overall supervision of Barnardos’ arrangements for providing statutory out-of-home care under the Act. She refers to Barnardos’ Constitution and Strategic Directions which demonstrate the Agency’s commitment to caring for children in care. She states that under the Deed between Barnardos and FACS, Barnardos has committed to achieving permanency outcomes for the children. She confirms that various caseworkers at Barnardos have been directly involved in E and F’s care, demonstrating a genuine concern for their welfare.

2. In the affidavit Ms Palacios affirmed on 12 June 2018, she states her role as Program Manager, Adoptions Barnardos. She outlines Barnardos history in case management of the children and provides evidence of E and F’s connection to Ms G. She states that Barnardos has held delegated parental responsibility for E and F since 18 September 2013 and that she personally has had case work responsibility for E and F since 5 September 2013. She states that she initially observed the children in their placement with Ms G and her then partner twice a week and then on a monthly basis since December 2013.

3. In the affidavit Ms Palacios affirmed on 1 August 2018, she reiterates her belief that the children have a strong bond with Ms G and wish to stay with her.

4. In the affidavit Ms Reece affirmed on 23 October 2018, she states her role as Regional Manager, Adoptions Barnardos. She states she has been involved in E and F’s case since 1 February 2014 and has been Ms Palacios’ direct supervisor since 21 December 2016. Ms Reece provides evidence of Barnardos’ actions since the restoration application was filed and demonstrates how the Agency has continued to advocate for ‘permanency planning’ and for the children to stay with Ms G. She states that, although FACS had indeed filed some evidence of Barnardos’ position in the Children’s Court, being joined to the proceedings was needed to fully advocate for the position of Ms G.

5. In the affidavit Ms Palacios affirmed on 7 February 2019, she provides updates on the ongoing cooperation between Ms G and the birth mother in relation to contact visits.

44. The First and Second Defendant relied on the following evidence:

1. In the affidavit Ms Kloeckner affirmed 18 January 2018, she stated that she is a caseworker for FACS. She reports that both E and F’s biological fathers do not support restoration to the birth mother, however FACS has recognised the significant improvement made by the birth mother. She recommended further assessment from a Court Clinician.

2. In the affidavit Ms Kloeckner affirmed on 9 May 2018, she notes that Barnardos has changed its recommended care plan from permanent care with the view to adoption, to permanent care, given that Ms G has engaged in a new relationship. Following the report from Ms Howell on 7 May 2018, FACS state they support restoration to the birth mother.

3. In the affidavit Ms Kloeckner affirmed on 13 June 2018, she reiterates that FACS supports restoration of the children to their birth mother.

4. In the affidavit Ms Kloeckner affirmed on 23 July 2018, she states that she has day-to-day casework responsibility for the children for the purpose of the restoration application proceedings. She advised that FACS continue to support restoration to the birth mother.

5. A chronology relating to the evidence obtained from Barnardos and filed by the First and Second Defendants in the care proceedings.

Legal Issues/Consideration

The legal framework of the Act

45. It is necessary to outline in a little detail the legal framework in which care proceedings take place. Select provisions are set out below.

46. Sections 8 and 9 of the Act provide the objects of the Act and the principles for the administration of the Act respectively. Sections 8 and 9 are set out below:

8   What are the objects of this Act?   

The objects of this Act are to provide:

(a)     that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)     recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)     that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)     that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

9   Principles for administration of Act

(1)    This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2)    Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a)     Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b)     In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c)     In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d)     If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e)     If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f)     If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g)     If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

47. Sections 8 and 9 of the Act provide, explicitly that the Act is to be administered with the interests of the child as paramount concern. All decisions or actions made by this Court or the Children’s Court, FACS, the carers or anyone else, are to ensure that the child’s safety, welfare and well-being is the paramount consideration. When the Children’s Court ultimately comes to hear the care proceedings and consider the possibility of restoration, it performs a crucial role in determining the best interests of the child, taking into account all the circumstances and considering all the various orders that can be made.

48. The care proceedings in the Children’s Court are brought by the Third Defendant under s 90. Under s 90(1AA)(d), an application for rescission or variation of a care order may be made, with the leave of the Children’s Court, by a person from whom parental responsibility for the child has been removed. Leave in this case was given on 16 February 2018.

49. Section 93 is in the following terms:

(1)    Proceedings before the Children’s Court are not to be conducted in an adversarial manner.

(2)    Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3)    The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.

(4)    In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.

(5)    Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.

50. Section 99D proscribes the role of the children’s ILR, including the power to lodge an appeal. Section 99D is reproduced below:

99D   Role of a legal representative

Without limiting the role of a legal representative for a child or young person in proceedings before the Children’s Court:

(a)     the role of a direct legal representative includes the following:

(i)     ensuring that the views of the child or young person are placed before the Children’s Court,

(ii)     ensuring that all relevant evidence is adduced and, where necessary, tested,

(iii)     acting on the instructions of the child or young person, and

(b)     the role of an independent legal representative includes the following:

(i)     if a guardian ad litem has been appointed for the child or young person - acting on the instructions of the guardian ad litem,

(ii)     interviewing the child or young person after becoming the independent legal representative,

(iii)    explaining to the child or young person the role of an independent legal representative,

(iv)     presenting direct evidence to the Children’s Court about the child or young person and matters relevant to his or her safety, welfare and well-being,

(v)     presenting evidence of the child’s or young person’s wishes (and in doing so the independent legal representative is not bound by the child’s or young person’s instructions),

(vi)     ensuring that all relevant evidence is adduced and, where necessary, tested,

(vii)     cross-examining the parties and their witnesses,

(viii)     making applications and submissions to the Children’s Court for orders (whether final or interim) considered appropriate in the interests of the child or young person,

(ix)     lodging an appeal against an order of the Children’s Court if considered appropriate.

The issues

51. The parties were in agreement on the issues in this case. They submitted that the following questions needed to be answered:

1. Is the Sixth Defendant a ‘person’ within the meaning of s 98(3)?

2. If so, does the Sixth Defendant have a ‘genuine concern for the safety, welfare and well-being of the children as required by s 98(3)?

3. If so, should the Court exercise its discretion to grant leave for the Sixth Defendant to appear?

4. If so, should there be any limits on the leave granted?

52. Each of these issues is outlined below.

Is the Sixth Defendant a ‘person’ within the meaning of 98(3)?

53. For the reasons which follow I am of the view that Barnardos is a person for the purposes of S 98(3).

54. Section 98(3) permits a person with a genuine concern for the safety, welfare and well-being of the child to apply for leave to appear in proceedings (emphasis added). The Appellant contends that this section refers only to a ‘natural person’, thus the Sixth Defendant, as a corporation and designated agency, cannot make an application to appear. In my view, there is nothing to support this proposition.

55. The term ‘person’ is not defined anywhere in the Act. However when a term is not defined in the legislation it is appropriate to turn to the Acts Interpretation Act NSW 1987. Section 21(1) of that Act relevantly defines ‘person’ to include ‘corporation’. Justice Deane discussed the issue in K&S Lake City Freighters Pty Ltd v Gordon & Gotch [1985] 157 CLR 309. He observed, “Prima facie, unless rebutted, a reference to a person will include natural and artificial legal entities”. He went on to note that the starting point of construction is the actual words of the section, and then the words must be read within the context of the particular Act.

56. The Appellants contend that by reading the whole of s 98, wherein s 98(1) confers rights on specifically named ‘natural persons’ supports the claim that s 98(3) can only refer to similarly ‘natural persons’. I cannot agree with this interpretation. It is clear to me that s 98(1) confers a right of appearance on specifically named persons including the Minister, Secretary and other persons having parental responsibility for the child. Section 98(3) is then intentionally broader, permitting any person with a genuine concern to apply to the Court for leave to appear. The terms of s 98(3) are deliberately wider than s 98(1). It gives the Court in my view a very wide discretion.

57. Turning to the rest of the statute. The Act clearly contemplates that designated agencies, organisations and corporations will play a significant role in the care and protection of children and young people. One only has to look as far as the Objects of the Act contained within s 8 to see that all ‘institutions, services and facilities responsible for the care and protection’ (emphasis added) are to help provide a safe and stable environment for children (s 8(b)). Although not defined in the Act, the ordinary meaning of institution, that is an organisation founded for a particular purpose (Macquarie Dictionary), clearly encompasses body corporates. Section 15 requires the Minister to promote partnership with ‘non-government agencies, families, corporations, business agencies and the community’ in the administration of the Act. Section 17 provides that the Secretary may request a ‘non-government agency’ provide services for the care and protection of young people. It would seem logical then, given the status that various agencies are given under the Act, that an unduly restrictive interpretation of ‘person’ would serve to inhibit the role that these entities may play.

58. In particular, confining ‘persons’ to ‘natural persons’ would specifically undermine a designated agency’s role under the Act. For example, s 85A explicitly contemplates the role of the designated agency in facilitating restoration of children to birth parents, including deciding whether to ‘make an application’ for rescission or variation of a care order (s 85A(3)(c)). Section 90 governs applications for rescission and variation of care orders. Section 90(1AA) provides a list of persons who can make an application; it does not explicitly refer to a designated agency. Section 90(1AA)(c) provides that a ‘person having parental responsibility for the child’ may make an application, but under 79(4A) this cannot include a designated agency. Section 90(1AA)(e) states that ‘any person who considers himself or herself to have a sufficient interest in the welfare of the child or young person’ can make an application for rescission or variation. The reference to ‘himself or herself’ suggests that here it is referring to a natural person. However, as this is the only provision enabling this kind of application, ‘person’ within s 90(1AA)(e) must include a designated agency lest they be prevented from performing the obligations contemplated by s 85A.

59. There are particular examples where the legislature has deliberately chosen to make a distinction between ‘person’ and ‘natural person’. Section 27A provides for alternative reporting arrangements, and relevantly states in ss (2) that ‘The Secretary and the head of a relevant agency may enter into an arrangement under which the person (the staff member)…’ The use of the particular ‘staff member’ seems to me to indicate a natural person specifically in this context. The Sixth Defendant referred to Reg 29 of the Children and Young Persons (Care and Protection) Regulation 2012, which defines an ‘authorised carer’ for the purposes of Div 2 of Part 6 of that Regulation to mean ‘a natural person authorised…as an authorised carer by a designated agency’. The presence of explicit references to ‘natural persons’ would seem to infer that in the absence of such words, the legislature intended that generally, corporations would be included within the definition of ‘person’.

60. Further, there are other suggestions of the legislature perhaps confining the breadth of ‘person’ in particular circumstances. Section 79(1) provides that the Children’s Court may make an order allocating parental responsibility to various people including a ‘suitable person or persons jointly’ s 79(1)(f). There is no reference to a designated agency within the subsection. The section was subsequently amended in 2015 to include, s 79(4A), which provides that the Children’s Court must not make an order allocating parental responsibility to an organisation or the principal officer of a designated agency. It is apparent that the sub-section was specifically added through an amending Act to limit the scope of s 79(1). It is clear then that ‘person’ within s 79(1) was always intended to refer to ‘organisations’ and ‘body corporates’, otherwise there would be no purpose to s 79(4A).

61. It appears clear to me that the words in s 98(3) should not be limited to ‘natural persons’, and that the Sixth Defendant as a body corporate and a designated agency is a ‘person’ to which the section refers.

Does the Sixth Defendant have a genuine concern for the safety, welfare and well-being?

62. Accepting that the Sixth Defendant is a ‘person’ for the purposes of s 98(3), the question remains as to whether the Sixth Defendant as a corporation and a designated agency can have a ‘genuine concern for the safety, welfare and well-being of the children and whether they do in fact have such genuine concern in this case. Again for reasons which follow it satisfies this requirement as well.

63. The Appellants suggested that only a personal relationship or actual parental responsibility was likely to indicate a ‘genuine concern’ for a particular child. The Sixth Defendant it is submitted as a corporation and designated agency can have no personal relationship with E and F, nor can it be said to have parental responsibility for the children. They argued that it was unclear on what other basis Barnardos could advance this claim to ‘genuine concern’. The Appellants further contend that the basis of the relationship between the Sixth Defendant and the children is in fact dependent on the Minister’s choice to engage the Sixth Defendant as a designated agency. The relationship is therefore governed by the Deed and the Ministerial Delegation, and the Sixth Defendants only ‘genuine concern’ could possibly be fulfilling the obligations of these instruments.

64. It seems to me that the fact that the Sixth Defendant does not have and cannot be given (under s 79(4A)) parental responsibility, is not sufficient reason for finding that it cannot have a genuine concern for a particular child. Further the existence of the Deed and Delegation do not detract from the Sixth Defendant’s legal obligations under the Act. It is clear that designated agencies play a significant role in the care of children and young people, despite not having parental responsibility. The Sixth Defendant was responsible for placing E and F with Ms G and for overseeing the case management while they have been in her care. Ms G has ‘care responsibility’ of the children, meaning that she, assisted by Barnardos, where necessary, makes day-to-day decisions for the children (s 157). In particular the exercise of that care responsibility is subject to any written direction given by the designated agency that placed the child (s 157(3)). It is clear moreover that under the Ministerial Delegation, the Sixth Defendant has been given the authority to exercise parental responsibility in particular instances. Section 98(1) confers a right of appearance on certain people with a specific legal relationship to the child (such as the Minister or Secretary). The words in s 98(3) do not imply in my view a similar requirement.

65. The phrase ‘genuine concern’ is not defined in the Act. Taking its ordinary meaning, ‘genuine’ means ‘real’, ‘authentic’, ‘true’ (Macquarie Dictionary). Although it is likely that ordinarily, applications under s 98(3) would be made by people with a personal connection with a child such as grandparents and former carers, there is nothing on the face of the words of the Section that would suggest that only a personal relationship will suffice. As the First and Second Defendant submit, and with which I agree, a genuine concern could be inferred by assessing the state of mind of the Sixth Defendant as a corporation. It is explicitly stated in s 258AB of the Act that ‘evidence that an officer, employee or agent of a corporation had a particular state of mind is evidence that the corporation had that state of mind’. It therefore seems clear that there is nothing preventing a corporation having a ‘genuine concern’ under s 98(3).

66. Once established that the Sixth Defendant can theoretically have a ‘genuine concern’ the case remains whether in fact it possesses a ‘genuine concern’ for these particular children the subject of the care proceedings. There is some discussion in the authorities as to how this determination is to be made. There is some uncertainty as to whether ‘genuine concern’ involves a subjective or an objective test. Truss DCJ in EL & WL v Director-General of the Department of Human Services [2010] NSWDC 248 stated that

The Court accepts that the ultimate question is…that the Court is required to assess objectively whether the plaintiffs have a genuine, subjective concern.

67. Slattery J considered the issue of genuine concern in Bells-Collins Children v Secretary, Department of Family and Community Services [2015] NSWSC 701. His Honour without too much difficulty found that the great-grandparents in that case had a ‘genuine concern’ on both a subjective and objective basis but did not determine the precise nature of the test.

68. Although not binding on this Court, the Children’s Magistrate considered the issue in the case of: In the matter of Pamela, 31 March 2003. Magistrate Schurr considered whether Anglicare, who was already a party to the proceedings, should be removed on the basis that they did not have a ‘genuine concern’ and where the foster carer had subsequently been joined. Schurr CM dismissed the application to remove, finding that Anglicare’s long involvement with the case-management, supervision of care and participation in case conferences was enough to show a ‘genuine concern’. The fact that there may have been some overlap in submissions between the parties was not sufficient reason for removing Anglicare from the proceedings.

69. The Sixth Defendant pointed to analogous uses of the term ‘genuine concern’ in other protective jurisdictions in Australia. Although the expression has only been considered at the tribunal level, it provides a helpful overview. In Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44, the NSW Administration Decision’s Tribunal Appeal Panel, considered s 29 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. In finding that the organisation “People with Disability Australia Inc” did have a ‘genuine concern’, the Appeal Panel stated that term was not narrow or precise and should be read within the context of the protective jurisdiction of the statutory scheme. They found that the organisation evidenced its ‘genuine concern’ through its objects and the practical activity it undertook in pursuit of these objects.

70. In NEJ [2017] NSWCATGD 1, the Guardianship Division of the Tribunal found the statutory functions and purpose of a particular Local Health District provided the basis for finding that it had a genuine interest in NEJ’s welfare. In EBI [2017] NSWCATGD 6, the NSW Civil and Administrative Tribunal found that operating health facilities were able to show a ‘genuine concern’ through their provision of direct relief of sickness, suffering and distress. Without intending to be exhaustive see also MZT [2018] NSWCATGD 8, QVC [2017] NSWCATGD 20, HZN [2018] NSWCATGD 31 and NZD [2017] NSWCATGD 21 where similar findings were made. These cases suggest that ‘genuine concern’ could be evidenced through the established objects and activities of a corporation.

71. As noted above, it is not controversial that the state of mind of a corporation can be inferred through the acts of its agents and employees. The evidence relied on by the Sixth Defendant clearly demonstrates in my view a genuine concern by the case workers involved with the placement of E and F. The affidavits from Ms Palacios in particular, highlight her involvement with the children, consistently over the past five and a half years [T45/21-29]. She states that she has been a supervisor of the placement, has had regular contact with both children, facilitated contact visits, and has provided ongoing support to the carer. The Sixth Defendant as a designated agency, has in fact been exercising aspects of parental responsibility, and has been participating in decisions relating to the case management and care of the children [T42/35-45].

72. At a higher level, considering the Constitution and Strategic Directions of the Sixth Defendant, it is clear that having a concern about the safety, welfare and well-being of children, is specifically what the Sixth Defendant was created to do. The principle objects of Barnardos as set out in its Constitution specify that the organisation is to for example, ‘work with children and young people in need of care, support, protection and education’, as well as ‘provide relief and assistance to support, care, protect and educate these children and young people’. Barnardos’ Strategic Direction 2017-2020, further highlight the agency’s commitment to supporting children and young people, as well as using their knowledge and expertise to bring a voice of the children and carers to child protection.

73. An applicant for leave clearly needs to satisfy the statutory threshold. The better view in my opinion is for there to be both an objective and subjective element of the test. The precise weight to be given to each component will vary upon each individual application.

74. A close relative may have little or no difficulty in satisfying a Court of his or her genuine concern. But mere familial status is insufficient. The word ‘genuine’ imports in my view something over and above mere blood relations. Equally in my view notwithstanding its charter Barnardos or any other equivalent agency would arguably not simply by reason of its objectives be able to satisfy a court of its genuine concern without more. When however its caseworkers or employees as here have played a material role in the monitoring of the children, a genuine concern may readily be apparent. The circumstances of each case are crucial in determining whether intervention under s 98(3) is warranted.

75. The active involvement in the case management, and the ongoing commitment by particular case workers to the care and protection of these two children, taken together with the objects and purpose of the Sixth Defendant as a whole, clearly demonstrate in my view a ‘genuine concern’ for the safety, welfare and well-being of the two children who are the subject of these proceedings and provide an adequate basis for it to seek leave to be joined. Barnardos therefore satisfy that part of the requirement by reason of their genuine concern.

76. I should also say in passing I have not been assisted in construing s 98(3) by reason of s 87. The two sections deal with entirely different situations. Section 98(3) is or is not engaged by an appropriate applicant. Section 87 on the other hand is arguably a jurisdictional fetter on the Children’s Court only in the event s 87(i) is applicable. The construction issues have been more than amply dealt with by McDougall J in Re: June(No 2) (2013) NSWSC 1111 at [186]-[190]

How should the discretion be exercised?

77. In my view in all the circumstances and again for reasons which follow Barnardos should be given leave to be joined and examine and cross examine witnesses.

78. It appears to me, that the most significant factor to take into account when deciding whether or not to exercise the discretion of the Court to grant leave for the Sixth Defendant to appear in the care proceedings, is whether or not it would be in the best interests of the children. Each party before this Court, albeit via their own client’s interests, wish to persuade the Court that each particular outcome advanced is in the best interests of the children. How each party has reached this conclusion, is no doubt via very different routes and reasoning processes. Thus, all parties play an important role in assisting the Court to determine what particular order is ultimately in the best interests of the children.

79. The Appellants assert that the ILR can be the only true voice for the children. In my view, this is incorrect. The ILR fulfils an important statutory role in advocating for the best interests of the children, and where appropriate, taking specific instructions from the children. But this does not mean it is the sole voice of the children, nor does it follow the view advocated by the ILR is necessarily in the best interests of the children. As the Third Defendant correctly stated, children’s wishes are complex, and the wishes of young children especially may need to be inferred through a variety of sources and evidence, not just their stated wishes. The Sixth Defendant is in a unique position to present evidence on the history of the children in care. It has been responsible through relevant processes for furnishing the First and Second Defendant with updates, care plans and information on the children, and has been directly engaged in ongoing case management.

80. The Appellants contended that it was not necessary for the Sixth Defendant to appear as a party in order to provide certain evidence to the Court. Rather the obligations of the ILR in s 99D, particularly s 99D(b)(vi), which provides that the ILR was to ‘ensure all relevant evidence is adduced and, where necessary, tested’, would be sufficient. Moreover, the Appellants submitted that the First and Second Defendant in their role as a model litigant had further obligations to inform the Court of all relevant evidence. In my view that submission overlooks the practicalities of these obligations and ignores the reality of the situation. The requirements in s 99D(b)(vi) must be read in the context of the section as a whole, which provides for the general role of the ILR. This role is first and foremost to advocate for and take instructions (if appropriate) from the particular children in question. It is only within this context that the ILR must put forward all evidence that it understands to be relevant. To seriously suppose it could independently put forward a case for the Sixth Defendant is unrealistic. It would be contrary to the Act and would likely place it in a position of conflict, were the ILR to put forward a view that it believed for example was contrary to the best interests of the children. At worst it would be an exercise in tokenism.

77. The Sixth Defendant’s role should not be limited in my view, however, to presenting evidence to the Court. As the Appellants and the First and Second Defendants appear to acknowledge, no one is in a better position to advocate for the Sixth Defendant’s position, than the Sixth Defendant themselves. It is clear that despite s 93(1) of the Act, including the requirement that proceedings are not to take place in an adversarial manner, that the Act explicitly contemplates examination and importantly cross-examination. This seems to me clearly to recognise that parties in such proceedings, like parties in other litigation, will be conducting their cases through advocates exclusively pursuing the interests of their respective clients. The mere tendering of affidavits to support the Sixth Defendant’s position overlooks the idiosyncratic nature of each piece of litigation and the realities, practical and ethical. Any cross examination to be effective should be directed to the pursuit of a particular party’s interest. It could hardly be otherwise.

78. At this stage, it is not certain whether or not at the final hearing the interests of various parties will coalesce. It is therefore unclear whether or not the Sixth Defendant will indeed be the only party pursuing an order for long-term care with the view to adoption. It is true that the Fourth and Fifth Defendants have indicated that they oppose restoration to the Third Defendant. However, those parties are unrepresented and they have had variable engagement with the care proceedings as a whole. The proposed adoptive mother, Ms G, of course opposes restoration. She speaks via Barnardos. Currently then, the Sixth Defendant is the only one taking the position that a long-term care order with a view to adoption is in the best interests of the children. That position can only properly be ventilated in my view through the proactive engagement of the Sixth Defendant, via evidence and perhaps cross examination. Expecting the Appellants or the First and Second Defendant to run a case by proxy, contrary to their clients’ wishes is impractical, unrealistic and unweildy. Without the full participation of the Sixth Defendant, it seems to me, that the Children’s Court would be unable adequately to contemplate the option of a long-term care order with a view to adoption.

79. I should in passing also deal with some subsidiary and discretionary matters raised in opposition to joinder.

80. The Appellants also point to certain clauses within the Deed and Ministerial Delegation that purportedly prevent the Sixth Defendant from becoming a separate party to the proceedings. The Appellants rely on the Delegation which provides:

Each delegation is subject to the conditions that:

(i)   It will be exercised subject to such administrative instructions as the secretary may give from time to time,

(ii)   Any matter which involves a substantial departure from policy shall be submitted for consideration by the Minister.

85. The Appellants contend that this prevents the Sixth Defendant from taking a position contrary to the First and Second Defendant. Further, the Appellants point to sub-clause 15.6 which states ‘[the delegate] will not be formally joined as a party to any application’ as evidence that the Sixth Defendant can not apply for leave under s 98(3).

86. It is unsurprising that neither of these points featured in oral argument. There is in my view, no substance to either argument. There is no support for the claim that parties can abrogate by arrangement the terms of the statute. The Sixth Defendant is primarily obligated to follow the provisions of the Act, and in particular, act at all times in the best interests of the children. The Deed and Delegation do not operate in my view to impede the Sixth Defendant from making an application under s 98(3).

87. Briefly in relation to other discretionary factors, there is no evidence that there will be an inordinate delay by allowing the Sixth Defendant to appear in the proceedings. Claims of wide-reaching policy implications are similarly overstated. It is clear from the wording of s 98(3) that it remains the Court’s discretion whether or not to grant leave to appear in each particular case. Each decision on whether or not to grant leave will be determined by the facts in question.

Limits on the granting of leave   

88. Turning to whether there should be any limits placed on the leave granted. Given that the position of several of the parties may change following the reports of the experts, it is inappropriate to restrict the leave at this stage. How the proceedings below are ultimately run is a matter for case management of the Children’s Court. If interests do eventually coalesce as further evidence is revealed, it may be appropriate to limit the duplication of evidence, and/or cross examination, but that is not appropriate for this Court to decide at this time. All questions concerning case management and trial procedure should be entirely a matter for the Children’s Court.

Conclusion

89. I would dismiss the Appeal and I would therefore pursuant to s 91(5) of the Act confirm the decision of the learned President.

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Decision last updated: 29 March 2019