GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym)

The proceedings before Gleeson and White JJA and Emmett AJA concerned appeals arising from decisions of the Children's Court regarding the appointment of guardians ad litem for children involved in care proceedings. The first appeal, GR v Secretary, Department of Communities and Justice, involved a young person for whom a guardian ad litem had been appointed. The second appeal, Secretary, Department of Communities and Justice v BW, concerned a child for whom a guardian ad litem had also been appointed.

The central legal issue before the Court of Appeal was the interpretation of section 98(2A) of the *Children and Young Persons (Care and Protection) Act 1998* (NSW), particularly its interaction with section 100 of the same Act, in circumstances where a child or young person was found to be incapable of giving proper instructions to a legal representative. The Court was required to determine whether the appointment of a guardian ad litem under these provisions was mandatory or discretionary prior to the amendments made by the *Families, Communities and Disability Services Miscellaneous Amendment Act 2021* (NSW).

The Court reasoned that section 98(2A) of the Act, prior to its amendment, did not mandate the appointment of a guardian ad litem. Instead, it directed the Children's Court to consider whether such an appointment was necessary, with the power to appoint a guardian ad litem being found in section 100. The Court concluded that the Children's Court had erred in treating the appointment as mandatory. Consequently, the appeals were allowed, the orders appointing guardians ad litem in both matters were set aside, and the decision of the Children's Court in the second matter was quashed. No order was made as to costs.