GR v Secretary, Department of Communities and Justice

[2020] NSWSC 607

Supreme Court

New South Wales

Medium Neutral Citation:

GR v Secretary, Department of Communities and Justice & Ors [2020] NSWSC 607

Hearing dates:

14 May 2020

Date of orders:

22 May 2020

Decision date:

22 May 2020

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Plaintiff’s stay application refused. No order for costs made. Recommendation made for the plaintiff’s appeal to be expedited.

Catchwords:

FAMILY LAW – Children – appeal under the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”) from a determination in Presidential Children’s Court proceedings – the determination granted parental responsibility for the child to the Minister – the child’s mother, the plaintiff, appeals under Care Act, s 91 to the Supreme Court – the plaintiff seeks by motion to stay the orders of the Presidential Children’s Court – whether a stay should be granted.

Legislation Cited:

Children’s Court Act 1987, s 22A
Children’s Court Regulation 2019, cl 51A
Children and Young Persons (Care and Protection) Act 1998, ss 91, 91(7)
Uniform Civil Procedure Rule 2005, rr 50.5, 50.7, 50.18, 50.18(1)(b)

Cases Cited:

Amoco Australia Pty Ltd v Rocca Bros. Motor Engineering Co Pty Ltd (1972) 7 SASR 268
FAI Insurance Ltd v Registrar of Workers Compensation Commission of NSW [1982] 1 NSWLR 239
GR v Secretary, Department of Family and Community Services and Justice & Ors (No. 2) [2019] NSWSC 1725
G v Family and Community Services [2019] NSWSC 229
GR v Secretary Department of Family and Community Services and Justice & Ors [2019] NSWSC 1146
GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348
GR v Secretary, Department of Family and Community Services and Justice & Ors (No. 3) [2020] NSWSC 259
GR v Secretary, Department of Family and Community Services and Justice & Ors (No. 4) [2020] NSWSC 457
GR v Secretary, Department of Family, Families, Disabilities and Community Services [2020] NSWCA 79
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 1) [1983] 2 QdR 243
NSW Bar Association v Stevens (2003) 52 ATR 602

Category:

Procedural and other rulings

Parties:

Appellant (mother): in person
First Respondent: Secretary, Department of Communities and Justice
Second Respondent: Minister for Families, Communities and Disability Services
Third Respondent (father): in person
Fourth Respondent: the child

Representation:

Counsel:

 

First and Second Respondents: D. Kell SC; M. Anderson
Fourth Respondent:    E. Stolier (Independent Legal Representative)

    Solicitors:
First and Second Respondents: J. Mooney, NSW Crown Solicitor's Office
Fourth Respondent: Ms Krstina Wooi, independent legal representative

File Number(s):

2020/123080

Publication restriction:

No

Judgment

1. This judgment decides an application for a stay of the orders made by the Presidential Children’s Court pending an appeal to this Court. The Children’s Court made its final orders in respect of the child on 3 April 2020, approving an Amended Care Plan under Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”). The care plan allocated all aspects of parental responsibility for the child to the Minister for Families, Communities and Disability Services (“the Minister”) until the child attains 18 years of age.

2. The child’s mother, the plaintiff, now appeals to this Court under Care Act, s 91 against the Children’s Court decision. Because the final orders were made in a Presidential Children’s Court, an appeal must be brought to the Supreme Court (Equity Division) rather than to the District Court: Children’s Court Act 1987, s 22A and Children’s Court Regulation 2019, cl 51A. Procedural adjustments to the form of appeal need to be made, which are dealt with in the next section of these reasons.

3. The mother moved on 14 May 2020 upon prayers for relief 3 to 7 of her Notice of Motion filed on 27 April 2020 (“the Stay Motion”), which seek the following relief:

“3.   Stay the Final Care Orders of 3 April 2020 in Children’s Court Proceedings 2018/203310 forthwith, pending determination of this Appeal.

4.   In the alternative to 3, Order that [the child] be placed in his own home forthwith in his mother’s care.

5.   Order that [the child] is not to be removed from his home or any other place in his mother’s care without leave of Justice Kunc of this Court after a contested hearing only, with a minimum of 5 working days’ notice to the mother by email and phone.

6.   Order that the NDIS funding for [the child] is to be returned to his mother’s control forthwith.

7.   A Recovery Order for [the child] to his home in his mother’s care, with the first and second defendants to inform the Court of the address and phone number of [child’s] placement”

4. The mother appeared for herself at the hearing on 14 May 2020. The child’s father has been joined as the third defendant. He appeared for himself, supporting the mothers stay application. The first respondent, the Secretary, Department of Communities and Justice, formerly the Department of Family and Community Services, (“the Secretary”), and the second respondent, the Minister for Families, Communities and Disability Services (“the Minister”), were both represented respectively by Mr D. Kell SC and Mr M. Anderson of counsel, instructed by the Crown Solicitor. They opposed the mother’s stay application. Finally, the independent legal representative for the child (“the ILR”), Ms Krstina Wooi, the fourth defendant, was represented by Mrs E. Stolier of counsel. The ILR supported the Minister’s and the Secretary’s opposition to the mother’s stay application.

5. For the reasons which appear below, the Court declines to stay the final orders of the Children’s Court made on 3 April 2020. But the Court recognises that the final hearing of this appeal should be dealt with expeditiously and has so recommended.

Some Procedural Adjustments

6. Some orders should be made first, to rectify some procedural issues with the appeal papers. This appeal was commenced in the form of an Amended Summons which the mother filed in existing parens patriae proceedings, which were being heard before Kunc J on 24 April 2020. But his Honour did not permit an appeal to be commenced in that way. The Summons the mother filed has now been taken to be an initiating Summons for a Care Act, s 91 appeal and has been allocated the case number 2020/123080.

7. But the filing of this document and the creation of separate proceedings should be regularised. The Court will include in its final orders the following notation:

“The Court notes that the document entitled ‘Amended Summons’ filed by [the mother] on 24 April 2020 in proceedings no. 2019/00062836 will stand as a Summons commencing an appeal (from specified orders of the Children’s Court) and it has been allocated proceedings no. 2020/00123080”

8. Uniform Civil Procedure Rule 2005 (“UCPR”), r 50.18(1)(b) requires that the defendants in an appeal against the decision in respect of the care of the child should include the child if the child is above the age of ten years and is not the plaintiff. As the child is not the plaintiff in this case he should be joined as the fifth defendant to conform to this rule. The Court will so order. The other defendants are properly joined as interested parties to the proceedings: UCPR, rr 50.5 and 50.18. Both the mother and the father criticise the ILR for taking the side of the Secretary and the Minister but the ILR is a proper party and is entitled to put on submissions.

9. The grounds of appeal in the Amended Summons merely reproduce the applicable legislation and contend that “there were multiple areas of law and procedural errors in the decision of the Court below, which will be elaborated in separate submissions on appeal”. It is necessary for the plaintiff to articulate the grounds of appeal more precisely. The Court will accordingly direct that the plaintiff provide to the defendants within 14 days a statement of her grounds of appeal.

Background Up to 24 April 2020

10. It is not practical on an interlocutory application such as this for the Court to reproduce the full welfare history of the child and the procedural history of various applications that have been brought both by the Secretary and by the mother since July 2018.

11. The child has been diagnosed with autism spectrum disorder (level 3) and avoidant restrictive food intake disorders (in his case, not eating select foods and sometimes all food). He originally came to the attention of the officers responsible to the Secretary and the Minister because of his aggressive behaviour and refusal to eat, which had led to a serious reduction in his body weight.

12. Since care proceedings were first commenced in July 2018, the Secretary has invoked the parens patriae jurisdiction to seek authorisation for extraordinary medical intervention for the feeding of the child through a nasogastric tube (“NG tube”), and associated and ancillary medical procedures. The mother has sought to invoke the Court’s parens patriae jurisdiction on previous occasions, seeking relief not dissimilar from the subject of the present application.

13. The mother has made a number of applications in the parens patriae jurisdiction. It is not necessary to recount them all in this judgment. It is sufficient to say that the comprehensive picture of these proceedings can be found through judgments of the Court such as G v Family and Community Services [2019] NSWSC 229 (Schmidt J); Re AB [2019] NSWSC 316; Re AB (No. 2) [2019] NSWSC 566 (Kunc J), GR v Secretary Department of Family and Community Services and Justice & Ors [2019] NSWSC 1146 (Slattery J), GR v Secretary, Department of Family and Community Services and Justice & Ors (No. 2) [2019] NSWSC 1725 (Kunc J), and GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348 (Robb J).

14. The position up to the filing of the present Summons for appeal on 24 April 2020 is comprehensively set out in prior judgments, GR v Secretary, Department of Family and Community Services and Justice & Ors (No. 3) [2020] NSWSC 259 (at [7]) and GR v Secretary, Department of Family and Community Services and Justice & Ors (No. 4) [2020] NSWSC 457, both judgments of Kunc J. And also in the most recent judgment of the Court of Appeal, GR v Secretary, Department of Family, Families, Disabilities and Community Services [2020] NSWCA 79. This judgment should be read with those judgments.

15. But the current position may be shortly summarised by reference to the decisions of the Children’s Court and events since the last of those decisions on 3 April 2020 and the hearing on 14 May 2020. The Children’s Court provided detailed reasons for decision on 27 February 2020 in which it concluded that there was no realistic possibility of restoration of the child to his parents and directed that a permanency planning be appropriately and adequately addressed. In the Children’s Court’s second decision on 3 April 2020, the Court was satisfied that permanency planning had now been appropriately and adequately addressed and final care orders were made. The amended care plan incorporated the proposed treatment plan ordered by Kunc J.

16. As to matters occurring from about 3 April 2020, Associate Professor Sloane Madden under whose care the child is being treated at the Children’s Hospital has given regular updating reports. At the time of the 3 April orders the child was an in-patient at the Sydney Children’s Hospital at Westmead having been re-admitted because of weight loss. At that time his weight was 41.9kgs. He was then reported by Dr Madden as being protected by appropriate COVID19 precautions and that the child was meeting each of his two parents separately by telephone by that his discharge from hospital was being planned and he expressed a desire to go home to his parents.

17. Dr Madden reported again on 14 April 2020, indicating that the child had successfully managed in a two bedded hospital room without distress, with regular bathroom use and very positive verbal interactions with fellow patients and that his weight was then 42.7kgs. Dr Madden reported that the child had agreed to leave the hospital for “a house where he will be supported by workers from impact services” and it was planned that he would be discharged the following day. He was discharged on 15 April.

18. On 23 April 2020, Dr Madden was supplied with a further update concerning the child’s discharge from hospital to care workers on 15 April 2020. It recorded the following. The child’s discharge on 15 April 2020 did not go well. By Tuesday, 21 April it appeared that the child’s food intake was insufficient. By 22 April 2020 during a regularly tele-health review it was clear that the child was “lethargic and flat” and had drunk insufficient water and had no food. As a general practitioner was not readily available until 6pm, a decision was made to call an ambulance and to re-admit him to hospital. Upon admission he was hypo-glycaemic and he was supported in the Emergency Department. He was not able to complete the minimum oral intake to ensure safety for discharge, so he was re-admitted for monitoring.

19. Dr Madden further reported that by 30 April 2020 the child had not required any further invasive treatment in hospital and had not needed intramuscular or intravenous medication or intravenous or nasogastric feeds. At the time of his admission to hospital he had only been 38.8kgs but by 1 May 2020 his current weight was 40.6kgs. By 1 May 2020 there had been no further episodes of hypoglycaemia, dehydration or medical instability reported since he was admitted to hospital. At the time of the hearing plans were being made for his discharge from hospital. But as will be seen below some medication was later administered.

20. It was in this context that the plaintiff’s stay application was heard.

Applicable Legal Principles

21. The principles that govern the grant or refusal of a stay upon an appeal such as this are not in dispute. Care Act, s 91(7) provides that, subject to any interlocutory order, an appeal does not affect the operation of the order appealed against, nor will it prevent the taking of action to implement the order. This provision recognises the value in Children’s Court proceedings of the certainty of implementing a considered decision unless other interlocutory intervention is indicated.

22. Moreover, UCPR, r 50.7 also provides that an appeal to the Supreme Court does not operate as a stay of proceedings under the decision of the court below, except insofar as the Court, or the court below, may direct.

23. The mother needs to identify circumstances that warrant departure from that general position. The general rule is that the judgment below should be presumed to be correct and to be given effect: see Amoco Australia Pty Ltd v Rocca Bros. Motor Engineering Co Pty Ltd (1972) 7 SASR 268 and JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 1) [1983] 2 QdR 243. That became the central contest in the parties’ submissions.

24. The overriding principle that the Court should apply in any stay application is upholding the interest of justice in the particular circumstances of the case: NSW Bar Association v Stevens (2003) 52 ATR 602; [2003] NSWCA 95 at [83]. The question to be considered is whether the refusal of a stay would not impose irreparable harm in the event that the appeal was successful: FAI Insurance Ltd v Registrar of Workers Compensation Commission of NSW [1982] 1 NSWLR 239.

Analysis of the Plaintiff’s Submissions and Consideration

25. This is not an appropriate case for a stay of the final orders of the Children’s Court pending final hearing. But there is certainly a case to expedite the final hearing and the Court will so recommend. The matter will be listed before the Chief Judge in Equity for further directions to prepare the matter for such a hearing. The Court’s reasons for reaching that conclusion can be analysed by reference to the four main contentions the plaintiff advanced.

26. First, the plaintiff’s written and oral submissions were in part directed to attacking the merits of the decision under appeal. But in this case the findings of the Children’s Court are not readily to be displaced at an interlocutory hearing. They are based on a comprehensive assessment of the evidence after a 12 day hearing commencing in November 2019, resulting in a detailed judgment on 27 February 2020 and a supplementary judgment on 3 April 2020. In those reasons the learned President of the Children’s Court made a series of findings of credit in relation to the plaintiff and the third defendant and about the overall situation of the child that indicate to the Court should take a cautious approach in disturbing the regime which the Children’s Court orders create before an appeal is heard. The Court has read the reasons of the President. With respect to his Honour the reasons are comprehensive, well-reasoned and do not upon reading demonstrate any obvious legal or factual error.

27. A stay application such as this is not a suitable vehicle for a detailed examination of the Children’s Court reasons. But one aspect of them may be looked at more closely. The plaintiff’s central submission on the stay application is that the child should be returned to her care immediately because he has been subjected to incarceration and involuntary treatment, that the Secretary has not been able to feed him, cannot care for him, the current regime has totally failed, evidenced by the fact that the child is now back in hospital, and that he has now decided to go on a hunger strike so that he can come home to the plaintiff.

28. The findings in the Children’s Court February and April 2020 reasons present a very different picture from these contentions. The Children’s Court February 2020 reasons found (at [428]) quite to the contrary of the plaintiff’s submissions about the quality of the medical treatment being given to the child. In the February 2020 reasons the Court expressly dealt with the parents’ submissions that criticise that medical treatment (at [428]) in the following way:

“*   I am satisfied the hospitalisation of and medical attention given to the child has been in his best interest and reasonably required, following appropriate consultation and discussion, or pursuant to approval by the Supreme Court exercising parens patriae jurisdiction.

*   the caseworkers in this matter have in my view acted at all times in what they believed to be the best interests of the child, and all decisions made as to the safety, welfare and well-being of the child have been taken carefully and cautiously, and where appropriate on the medical advice of the professionals charged with the child’s care.

*   The evidence does not support the contention that the child has been imprisoned or inappropriately treated, or otherwise abused in hospital or in care.”

29. These findings establish that not only was the medical treatment appropriate up to the hearing but the caseworkers have also acted appropriately and that the child has not been imprisoned or abused in hospital or in care. The Children’s Court’s April 2020 reasons reaffirmed after further evidence was adduced (at [84]) that “nothing had changed” since the February 2020 reasons.

30. It is theoretically possible that inappropriate medical attention, improper conduct by caseworkers or abuse of the child in hospital have occurred since the last Children’s Court decision on 3 April. But the evidence tendered and the histories given do not indicate that.

31. Several matters tell against any such conclusion. The history given in Ms Eldridge’s affidavit of 4 May 2020 is one of close attention to the child’s progress and re-hospitalisation because his weight was dropping. Nothing in the hospital notes obtained by the plaintiff on subpoena (Exhibit G) indicates inappropriate treatment in hospital. And despite the contradictory opinion of Professor Einfeld (which is an issue for final hearing), there is further evidence from Dr Sloane Madden of the continuation of appropriate medical treatment. Moreover, given the platform of findings in the Children’s Court reasons on the issue of appropriateness of treatment and given that largely the same medical professionals are involved in the plaintiff’s continuing treatment since then, an inference that there has been a sudden shift to imprisonment and inappropriate medical treatment is not an easy one to sustain.

29. The mother’s case pointed in particular to two medical events that had occurred since the Children’s Court’s last decision on 3 April 2020. She contended that certain injections of Olanzapine which were given to the child were likely to endanger his life. Secondly, she contended that the child’s weight loss under the parental responsibility of the Minister under the care plan requiring him to be re-admitted into hospital show that the care plan had failed already.

30. In support of those contentions the Court permitted her to adduce supplementary evidence from Emeritus Professor Stewart Einfeld. Professor Einfeld’s report was tendered in the course of the hearing on 14 May 2020 and became Exhibit F. As this was an interlocutory hearing the Court did not permit cross-examination on Exhibit F, or on the medical reports from Dr Madden who is presently supervising the child’s medical care at the Westmead Children’s Hospital. This was an interlocutory hearing on which the Court does not normally permit cross-examination.

31. But the Court allowed the tender of Exhibit F which speaks to the two issues of the administration of Olanzapine to the child and the child’s weight loss as follows:

“The appropriateness of administration of any psychotropic medication depends on an assessment of the patient’s recent and past history and current mental state examination. However, DC] has not permitted me to see and assess [the child], so this makes it difficult to give the Court an optimally well- informed opinion.

Consequently, I can only base my opinion on Dr Madden’s and DCJ communications to others as they have been communicated to me by Counsel for father or [the mother].

The justification for the olanzapine is said to be to treat anxiety. But I have not read any assessment of mental state from Dr Madden to indicate that [the child’s] problem is anxiety. A level of fluctuating anxiety is to be expected in autism, but that is nothing new for [the child]. I have said previously that I thought [the child’s] resistance to eating is more likely not based on anxiety but rather his way of protesting against being sent to a DCJ house. I have also said that if [the child] is told he cannot go home for 2.5 years, as he likely has been told, he is vulnerable to becoming depressed. Reports of his listlessness are consistent with this. Loss of appetite is a very common feature of depression.

The other justification proposed is to attempt to stimulate his appetite, as increase in appetite is a common side-effect of olanzapine. But it is by no means universal, so the olanzapine for this purpose is only a trial.

I have not seen any justification in the emails for using the intramuscular depot form of olanzapine rather than the shorter-acting oral form. I cannot remember ever using a depot form of a medication without first trying out the oral shorter-acting form, because if there are adverse side-effects or no benefit, the patient will continue to be under the effects of the long-acting medication for 2 weeks. Ms Walters’ email says [the child] was “agreeable” to receiving the injection but what exactly was the consent process to which he is said to have been agreeable? Was it truly informed and free of coercion? [The child] has had to bear so many discomforts imposed on his body over the last 15 months that he is likely feeling helpless about it.

The use of the olanzapine has to be seen also in the context of all that has happened to [the child] since DCJ assumed his care. After 15 months, it is dear that the FACS plan has been unsuccessful. At least 5 attempts to put [the child] in a DCJ house have failed quickly. He remains in hospital mostly bed- bound, and talks in sign language. This is a child who was attending a regular High School at least some of the time, though not without problems. Dr Madden says that his medical condition is stable.

It may be stable but his weight is hardly improved from the time he was admitted, and is much less than it was last August in Sydney Children’s Hospital, and low weight is the principal reason for the removal from his parents.

Dr Madden has made several attempts to discharge him and these have not succeeded. Any doctor would find this frustrating. Given I have not been permitted to discuss [the child’s] management with hospital staff, I have to rely on speculation about other motives for the use of the olanzapine. Olanzapine is a major tranquiliser and 210mg of the depot form is a significant dose recommended for schizophrenia (which [the child] doesn’t have). In that dose, lack of energy is common and [the child] has reported tiredness. It also commonly impairs motivation. Given the opportunity to be otherwise informed has been denied me, one could speculate that the treating team is hoping that olanzapine will make [the child] more compliant with the discharge plan.

I cannot help but be struck by the irony that olanzapine is the same drug that [the mother] gave [the child], which action was given as evidence of her incapacity to care for her son.

If I can assist the Court further, please let me know.”

35. The Court has set Professor Einfeld’s report out in full because it raises important broader questions about the child’s future care regime which must be debated at a final hearing. Professor Einfeld’s reasoning indicates the desirability of that final hearing taking place as soon as possible. And although the Court has not set it out in these reasons Professor Einfeld’s reasoning is supported by that of Dr Fairley in reports since 3 April 2020.

36. But this medical material does not support the mother’s contention that the administration of these drugs is life threatening to the child. The case that Professor Einfeld makes is a more subtle one about the child’s consent and the appropriateness of this sort of treatment in the long term – issues which are apt for final hearing.

37. And on the issue of administration of this drug the Court also weighs in the balance that Dr Madden has authorised it as medically appropriate and he too has reported to the Court about that decision in Exhibit 1 as follows:

“As per communication from Dr Shanker- Butler yesterday, [the child] was given an injection of Olanzapine long acting depot yesterday He was cooperative with this process and did not require restraint. [The child] was monitored for his blood pressure and pulse continuously for four hours post the injection without any adverse consequences. He is recorded to have eaten a McDonalds Cheese Burger, Fries and water at dinner time around 18.00. This morning he is awake, alert, orientated and communicating with the team. He continues to use sign language. He reports he is a little tired but this is generally the case when he is woken. He has not required any restraint, has not been given any other medication and is medically stable. He has not experienced low blood sugar levels, has not required IVI fluids or naso-gastric feeding and has remained on Wade Ward overnight.

He was last weighed on Monday when he was 39,6kg.”

38. There is no indication in this medical evidence that the administration of these drugs is life threatening as which would require the Court’s rapid intervention after the 3 April 2020.

39. The child’s weight loss is clearly a matter of concern. He has dropped below 40 kgs. But what is very clear from Dr Sloane’s evidence (Exhibit 1), and from the hospital notes (Exhibit G) from the Sydney Children’s Hospital at Westmead is that his weight is being closely monitored and that intervention will take place to maintain his weight if required.

40. But this was always a risk. The amended care plan in the final form approved by the Children’s Court on 3 April 2020 makes clear that the child’s admission to hospital for various reasons including weight loss is a foreseeable part of the future course of his care and treatment. On that subject the care plan says the following:

“The complexities of [the child’s] medical and developmental needs mean that it is foreseeable that he could require further admissions to CHW in the future. If that were to happen, [the child’s] carers would provide day-to-day care for [the child] in hospital.”

41. The Court is satisfied that has been occurring. The Court is also satisfied that Dr Madden is closely monitoring his weight.

42. The Court also observes that to the extent that Professor Einfeld has criticised the regime of the current care plan, as has Dr Fairley, and suggested an “alternative framework”, the Children’s Court April 2020 reasons expressly reject such an alternative in the following terms (at [85] – [87]):

“85.   The central finding I made in my Judgment was that there is no realistic possibility of restoration of the child to the parents within a reasonable time. There is nothing in any of the submissions or further evidence, even taken at their highest, that persuades me to alter that finding. Indeed, the evidence as to recent events, in particular as to the mother, only serves to reinforce the view I took that to return this child to these parents, or either of them, would present unacceptable risk of harm to him, incapable for the foreseeable future of being ameliorated or mitigated by any protective measures.

86.   The mother’s bald assertions that she would cooperate with DCJ cannot be accepted, or relied upon to formulate any future planning. What I described in my Judgment as her capacity to distort the truth has once again been demonstrated by her misrepresentation of what she was recently told by Associate Professor Madden.

87.   That indicates, for example, that the “alternative framework” proposed by Professor Einfeld has no hope of success, and the compromise proposed by Dr Fairley is equally futile.”

43. The Court cannot adequately resolve the conflict between the care plan supported by Dr Madden’s evidence and that of other doctors and the “alternative framework” proposed by Professor Einfeld and the compromise proposed by Dr Fairley. But the fact that this contest is likely to be re-agitated, with important consequences for the child, is another reason for an expedited hearing.

44. The mother’s second main contention is that the child should be “placed in his own home forthwith in his mother’s care” on an interlocutory basis: Stay Motion, prayer for relief 4. That claim for relief starkly raises the issue of what should happen if a stay were to be granted. Such a grant does not automatically mean that the child would be returned to the mother. That is one option but if there are substantial reasons against pursuing that option, and the mother does not advance any other alternative option, another consideration emerges against the grant of the stay.

45. The Children’s Court’s findings strongly suggest that pending final hearing that the child should not be returned to the mother. It is an open question on reconsideration on an appeal whether the same findings would be made. But before the appeal is heard, to argue for a return of the child home to her, the mother must surmount a number of serious findings against her made by the Children’s Court as follows:

46. The Children’s Court was required to resolve contested evidence of allegations of physical family violence between the mother and the father and in relation to various disclosures made by the child as to his physical abuse by the mother. These matters became the subject of the following express findings by the Children’s Court:

“[433]   I turn now to the evidence of physical family violence perpetrated by the mother against the father and the various disclosures made by the child as to physical abuse of him by his mother.

[434]   As regards the evidence of the mother's physical and emotional abuse of the father, as set out in his application for an AVO, and the various disclosures to caseworkers, I am satisfied as to the truth of those allegations, and that the abuse occurred as alleged.

[435]   As regards the disclosures of abuse by the child, I refrain from making explicit findings. I am satisfied, however, to the requisite standard of proof, that the accumulation of those disclosures is sufficient to give rise to an unacceptable risk of harm to the child, which I assess as significant. I am further satisfied that due to the mother's lack of insight, that risk is not yet capable of being sufficiently ameliorated to permit a restoration at the present time. Whether this position changes pursuant to the Proposed Treatment Plan remains to be seen, but as at the present time it militates against restoration.

[436]   It was the unanimous view of the three conclave expert medical witnesses before Justice Kunc, and accepted by him, that there should be no immediate, or imminent, restoration to the parents, either by way of a trial or otherwise. I am also satisfied as to that position, to the requisite standard.”

47. The Children’s Court findings go further. They look back at the evidence before the child was assumed into care and make broad findings (at [439]) about the overall suitability of restoration of the child to his parents:

“To the present time and continuing, the parents have collectively and individually demonstrated a total inability to safely care for the child. Their failure to ensure the child was appropriately fed and nourished is well documented. They were dysfunctional and incapable of managing the child. They have allowed themselves to be manipulated, physically abused and held to ransom by the child. They have consistently failed to work with the medical professionals and caseworkers in a cooperative and respectful way. They have not demonstrated any capacity to change, and continue to be critical of the medical professionals and caseworkers. They still have no insight into the child's needs or his precarious medical condition, and would be totally incapable of caring for the child alone. They refuse to accept the need for ongoing medical supervision of the child. ”

48. These findings were based on evidence of the mother, the father, medical professionals and caseworkers. But the Children’s Court also reached these conclusions based upon the evidence of an independent expert psychiatrist, Dr Milch. The Children’s Court found in respect of his evidence (at [443]) as follows:

“As to the mother, I agree with what Dr Milch said in his report of 4 October 2019 at paragraphs 125, 127 and 128:

‘The child needs to be placed in circumstances in which he receives adequate care and control. His parents have been consistently unable to provide this, having previously empowered him to behave in an inappropriate manner. As there was no indication that this would change, it is not possible to recommend that the child could be successfully placed with his mother or father. This is contrary to the child's repeatedly expressed view that he wished to reside with his mother in the family home.

Should he be returned to his mother's care at home, in accordance with her proposal and the child's wishes as supported by his father, it is probable that she will be unable to provided adequate supervision and monitoring of his basic physical needs. It is probable that the mother will fail to comply with requirements by child protection and health authorities to ensure that he receives adequate monitoring and intervention. This view is based on the review of her approach to parenting and interaction with educational, health and child protection professionals involved in his care in recent years.

Given the child's developmental disabilities and profound associated emotional and behavioural problems, there is no indication at present that the child will have a dramatic change in his behaviour in the foreseeable future. It is possible that the child may adapt to his new circumstances but only once he has understood that there are clear limits placed around his behaviour. This has been challenging to implement to date, given his experience of the parents' views and the unresolved dispute regarding his care.’"

49. The mother’s stay application and her claim for immediate restoration of the child did not address the implications of these findings. Apart from contending that they were wrong and that the plaintiff disagreed with them, the plaintiff was not able to articulate any basis on which the Court should ignore such findings to restore the child to her pending final hearing. Nothing was put before the Court which would persuade the Court that these findings should be given reduced weight on the present interlocutory application.

50. Even if the Court were persuaded of the plaintiff’s first contention (that the child was receiving inappropriate medical treatment) interlocutory relief by way of an interim restoration would only be granted if she could satisfy the Court that there was a strong case on appeal that these findings were wrong, or upon a re-hearing would be displaced by other compelling evidence of a different past family dynamic.

51. But no such material was advanced other than the mother’s own assertion of her and the father’s competence. The Court accepts that she can recontest these matters at final hearing. But a compelling interlocutory case for restoration is not made at this hearing. Given these findings, even if the Court were persuaded that inappropriate medical care were being given to the plaintiff, and the Court is not so persuaded, the course the Court is more likely to take is to explore variations of the existing Children’s Court orders to promote the child’s greater welfare, but short of restoration to the mother.

52. The mother’s third contention is that the child wants to be restored to her and that will lead to a stable future. But even if the child’s views are accepted at face value restoration may lead to the reverse of stability.

53. And an interlocutory stay pending final hearing that, in substance, reverses the Children’s Court’s orders and care plan is an inherently high-risk course for the child. In the course of submissions the Court asked the mother several times what would happen if the Court acceded to her application and restored the child to her and then on a final hearing of the appeal the decision of the Children’s Court was upheld. The findings of the Children’s Court emphasise the need for stability in the child’s life. The mother’s responses to the Court’s question on this subject did not provide any basis for the Court to conclude that the child would not immediately suffer from such instability. There is an undoubted risk of this outcome and the instability that it would create is a factor that weighs in the balance against the Court granting a stay.

54. This issue of stability was addressed in the President’s reasons of 3 April 2020. The learned President in his April 2020 reasons acted upon Dr Madden’s report of 4 March 2020, which said as follows:

“It is my professional opinion that ongoing legal hearings will impact negatively on the child’s mood and anxiety and undermine the chances of a successful transition from hospital and have potential to negatively impact on his health even in hospital…it is my professional opinion that it is in the child’s best interest that such proceedings are expedited…”

55. This led to the President dealing with an application by the mother on an ex tempore basis. This Court agrees with Dr Madden and the President that expediting these proceedings is the most desirable way of achieving stability. In the meantime any further instability in the child’s life is also undesirable. The mother’s household has long ceased to be the status quo ante.

56. The Court is not persuaded any of the interlocutory relief sought on the Stay Motion should be granted.

Conclusions and Orders

57. The mother has therefore been unsuccessful on the Stay Motion. The Minister and the Secretary have not indicated that in the event that the mother was unsuccessful that they would be seeking an order for costs against her. The ILR does not claim costs. No order for costs has yet been made.

58. It is clearly in the best interests of the child for the final hearing of the mother’s Care Act, s 91 appeal to be expedited, so that for the outcome of these proceedings and the child’s future path is known as soon as possible. For that reason the matter will be referred to the Chief Judge in Equity for further directions with a view to it being fixed for final hearing.

57. For these reasons, the Court makes the following orders and notations:

1. The Court notes that the document entitled ‘Amended Summons’ filed by [the appellant] on 24 April 2020 in proceedings no. 2019/00062836 will stand as a Summons commencing an appeal (from specified orders of the Children’s Court) and it has been allocated proceedings no. 2020/00123080;

2. Join the child [name not published], as the fifth defendant in these proceedings;

3. Prayers for relief 3 to 7 of the plaintiff’s motion of 27 April 2020 are dismissed;

4. The Court recommends that the final hearing of these proceedings be expedited;

5. The proceedings are adjourned for directions before Ward CJ in Eq on 26 May 2020 at 9.30am;

6. Direct that the plaintiff provide to the defendants within 14 days (5 June 2020) a statement of her grounds of appeal; and

7. These reasons are not to be published until further order.

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Decision last updated: 28 May 2020