G v Child Protection Board

[1987] TASSC 97

Serial No B27/1987
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            G v Child Protection Board [1987] TASSC 97; B27/1987

PARTIES:  G, R
  v
  CHILD PROTECTION BOARD

FILE NO/S:  LCA 51/1987
DELIVERED ON:  17 June 1987
JUDGMENT OF:  Nettlefold J

Judgment Number:  B27/1987
Number of paragraphs:  14

Serial No B27/1987
List "B"
File No LCA 51/1987

R G & ANOR v THE CHILD PROTECTION BOARD

REASONS FOR JUDGMENT  NETTLEFOLD J

17 June 1987

1. Notice to review the decision of a magistrate whereby he ordered:–

"That pursuant to Section 10 of the Child Protection Act 1974 the children [J G], [M G] and [N G] be taken to and kept in a place of safety for a period not exceeding 30 days."

And to quash the order on the following grounds:–

"1That the learned Magistrate erred in law in admitting into the evidence the affidavit of [R D R].

2That the learned Magistrate erred in law by directing himself that he was not required to examine whether or not the evidence placed before him was admissible in reaching a decision on an Application brought pursuant to Section 10 of the Child Protection Act 1974.

3That the learned Magistrate erred in law by directing himself that he was entitled to proceed to determine the Application upon the basis of the affidavit evidence before him without allowing the cross examination of the deponents of the affidavits.

4That the learned Magistrate erred in law by applying to the proceedings the provisions of Section 10(1) of the Child Protection Act, 1974 as it read prior to its amendment by virtue of Section 14 of the Child Protection Amendment Act, 1986 and in consequence had no jurisdiction to make the said order."

Ground 1

1. Attempts to give an all inclusive definition of the term "civil proceeding" in s96(2) of the Evidence Act 1910 are bound to fail. The only practical approach is to consider the characteristics of the proceeding presently in question. Taking that approach, there is no authority which requires me to hold that these proceedings before the learned magistrate constituted a "civil proceeding". There are very strong policy reasons for avoiding the conclusion that they do fall within the scope of that term. There are many judicial criticisms of the policy put into effect by s96(2). The basis of those criticisms is that s96(2), when given effect, can hide the truth and, consequently, create a risk of injustice. These critics think that, on balance, the attainment of truth in the pursuit of justice has a stronger claim to recognition than a claim to confidentiality of communication to medical practitioners Having regard to the purposes of the Child Protection Act 1974, the ascertainment of the truth, in proceedings of the type in question here, obviously, is a matter of great importance. The protection of children from relevant harm is the whole point of the scheme enacted in the Act.

1. That approach would lead me to avoid a conclusion that these proceedings fall within the scope of the term if I am free to do so. And I am free to do so. These proceedings should be characterised as Wilson J. characterised the proceedings he was discussing in the following passage in J v Lieschke & Ors (1986–87) 69 ALR 647 at 649:–

"Neglect proceedings are truly a creature of statute neither civil nor criminal in nature. They are, therefore, sui generis."

1. Pallin v Department of Social Welfare [1983] NZLR 266 does not assist because the section in question there was very different. Unlike that section, our subsection relates to civil proceedings only.

1. It is clear, as Justice Wilson's statement implies, that a number of the features of an ordinary civil proceeding are not present in these proceedings.

1. For these reasons, ground one should be rejected.

Ground 2

1. As I understand it, because of the ruling I have given on ground one, this ground becomes academic.

Ground 3

1. The rights and authority of parents have been properly recognised as fundamental. They have deep roots in the common law. In the absence of an unmistakable legislative intent to the contrary they cannot properly be modified or extinguished by the exercise of administrative or judicial powers otherwise than in accordance with the basic requirements of natural justice. (J v Lieschke & Ors. (supra) at p.658 per Deane J).

1. I can find no such "unmistakable legislative intent" here. In the collection of ss9–11 inclusive there is, so to speak, a step by step progression of what one might regard as a typical case. In those steps there are certain features which remind one of the typical progression of a criminal or quasi–criminal offender to a magistrate's court. Section 10(1) is the step at which an important judicial official, the magistrate, intervenes. Under s10(1) there are conditions which must be satisfied before an order can be made which is restrictive of, and hence, to that extent, an invasion of, the parents' fundamental rights. They are:–

(1)there is an application by the Board to be heard by a magistrate;

(2)it must appear to the magistrate that a certain state of affairs exists (a state of affairs which must surely reflect on the parents in some way – cf R v Worthing Justices [1976] 2 All ER 194 at 196); and

(3)the magistrate considers that it is desirable in the interests of the child to make the order.

1. Once an order is made the parents cannot get a revocation of the order unless they discharge an onus of proof (s10(3)).

1. Section 10A was introduced by amendment in 1986. It introduced a useful flexibility. Its terms tend to reinforce the impression that the parents have a right to be heard in proceedings under s10(1). In s10A Parliament has pointedly restricted the mechanism of temporary orders on applications under s10(1) and thus impliedly recognised the importance of the rights which may be invaded by s10(1) applications including, of course, parental rights to care and control.

1. No doubt in proceedings under s10(1) the magistrate has a wide discretion concerning procedure. (See, for example, Official Receiver v K & Anor [1965] AC 201). But I do not believe it was suggested that that power includes a power to decide to have a blanket refusal to allow cross–examination of witnesses. Such a blanket refusal in a proceeding such as this offends the rules of natural justice.

Ground 4

1. Not necessary to decide.

1. I shall hear counsel concerning the appropriate orders.