JAH v Chief Executive Officer, Department of Child Protection
[2013] WASC 81
•14 MARCH 2013
JAH -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION [2013] WASC 81
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 81 | |
| 14/03/2013 | |||
| Case No: | SJA:1095/2012 | 8 MARCH 2013 | |
| Coram: | HALL J | 8/03/13 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed Orders made by the magistrate set aside and in lieu thereof there be an order that the protection application be dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAH CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION |
Catchwords: | Child protection Finding that child not in need of protection Application for protection order conditionally dismissed Whether condition valid Whether open to further adjourn proceedings and make an interim order for continuing provisional protection Long delay |
Legislation: | Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 28, s 29, s 45, s 133 |
Case References: | CIC Insurance v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF CHILD PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T G SCHWASS
File No : CC 7216 of 2010
(Page 2)
Catchwords:
Child protection - Finding that child not in need of protection - Application for protection order conditionally dismissed - Whether condition valid - Whether open to further adjourn proceedings and make an interim order for continuing provisional protection - Long delay
Legislation:
Children and Community Services Act 2004 (WA), s 6, s 7, s 8, s 28, s 29, s 45, s 133
Result:
Leave to appeal granted
Appeal allowed
Orders made by the magistrate set aside and in lieu thereof there be an order that the protection application be dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S A Walker
Respondent : Mr W N Currie
Solicitors:
Appellant : Western Legal
Respondent : Department for Child Protection
Case(s) referred to in judgment(s):
CIC Insurance v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
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- HALL J:
Introduction
1 On the hearing of this appeal I granted leave and allowed the appeal. I said that I would publish reasons for my decision at a later date; these are my reasons.
2 This is a case about protection proceedings in the Children's Court. The appellant is the mother of the child who was the subject of those proceedings. On 16 December 2010 the respondent made an application to the Children's Court seeking an order that the child be declared in need of care and protection and be committed to the care of the Department of Child Protection (the Department) until the age of 18.
3 After a very long hearing, about which I will have more to say later, a magistrate made a finding that the child was not in need of protection. The consequence that should have flowed from that finding was dismissal of the application. The magistrate did make an order dismissing the application, but he conditioned that order on the occurrence of a future event. That event was the making of final parenting orders in the Family Court in respect of the child. His Honour also ordered that 'in the interim' the child was to remain in provisional protection and care.
4 The issue in this appeal is simple but fundamental. It is whether the Children's Court has the power to make orders that have the effect of keeping a child in protection after finding that there is no need for such protection. Expressed in that way the question appears to be self-answering. However, the respondent argued that the orders made by the magistrate were valid and that the appeal should be dismissed.
5 Whether the magistrate had the power to make the orders that he did depends upon the terms of the relevant statute. In this case, that is the Children and Community Services Act 2004 (WA) (the CCS Act). The terms of that act compel a conclusion that the magistrate did not have power to make the conditional order or to make an interim order.
Background
6 The appellant has five children. The older two are adults. The child who is the subject of these proceedings was born on 18 August 2002. There are also two younger children by a different father. The two younger children were the subject of Family Court proceedings that commenced in 2006. During the course of those proceedings some
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- concerns were raised about the welfare of the child who is the subject of these proceedings. That resulted in the Department being notified.
7 Where the Chief Executive Officer (CEO) of the Department receives information that raises concerns about a child's wellbeing the CEO may cause enquiries to be made for the purposes of determining whether action should be taken to safeguard or promote the child's wellbeing: s 31 CCS Act.
8 If the CEO determines that action should be taken to safeguard or promote the child's wellbeing the CEO must do one or more of the things set out in s 32(1) of the CCS Act. These can include causing an investigation to be conducted or taking intervention action in respect of the child. Intervention action is defined in s 32(2) to mean action that involves making an application for a warrant under s 35, taking the child into provisional protection and care under s 37 or making a protection application.
9 On 13 December 2010 a warrant was issued on the application of the Department under s 35(3) of the CCS Act. The warrant authorised the taking of the child into provisional protection and care. Where a child is taken into provisional protection and care following the execution of a warrant the CEO is obliged to make a protection application to the Children's Court: s 36(2). A protection application was made on 16 December 2010.
10 A child continues to be in provisional protection and care until one of the things referred to in s 29(3) of the CCS Act occurs. For present purposes that means that the child would remain in provisional care until the Children's Court either made an interim order under s 133 or finally determined the protection application by making or refusing to make a protection order. A protection order is an order made by the court and may be of one of the types referred to in s 43.
11 Prior to being taken into provisional care the child had been living with his mother, the appellant. Following being taken into provisional protection and care he was placed by the Department with his father in Kalgoorlie, with whom he has remained since.
12 The father was a party to the proceedings in the Children's Court, though he played a limited role. He was named as a respondent in these proceedings and was served with the appeal notice. He did not file a notice of intention to be heard and counsel for the respondent confirmed
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- that, though the father was aware of the appeal, he did not wish to participate.
13 There was also a separate child representative in the proceedings in the Children's Court. The lawyer who had represented the child was also served with the appeal papers but also did not file a notice of intention to be heard. Counsel for the appellant said that he had contacted the lawyer concerned who said that there was no grant of aid to cover representation for the child on the appeal and she did not intend to participate.
14 It is apparent from the Act that proceedings in the Children's Court for a protection order are to be commenced and finalised as expeditiously as possible. Provisional care and protection is intended to be a short term arrangement pending a determination by the court. In this case though the application was made quickly the proceedings before the Children's Court did not conclude until 17 August 2012. The hearing in the Children's Court did not commence until 16 July 2012 and then continued over some 21 days.
15 At the hearing of the appeal counsel for the respondent said that the reasons for this extraordinary delay included the following:
• it had been considered necessary for the Department to obtain reports from a number of experts, including psychologists;
• there had been delays in obtaining reports;
• the hearing had been originally listed at an earlier time but the appellant had sought an adjournment;
• there had also been very lengthy cross-examination of the respondent's witnesses at the hearing.
16 None of those factors seem to me to adequately explain or justify the long delay in bringing the protection proceedings to a conclusion.
17 The magistrate delivered his decision immediately following the conclusion of the trial. The issue for the magistrate to determine was whether the child was in need of protection. A child is in need of protection if one or more of the matters referred to in s 28(2) is established. These include whether the child has, for example, suffered harm as a result of physical, sexual, emotional or psychological abuse or neglect. The magistrate's factual findings are not in dispute on this appeal
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- and it is unnecessary to refer to them, or the evidence on which they were based, in any detail.
18 The magistrate concluded his decision by saying:
107. The Applicant has not satisfied me on the balance of probabilities, having regard to the serious nature of this application and the considerable consequences that flow from being so satisfied, that [the child] at the present time comes within one or more of the definitions of a child in need of protection.
108. [The child] is not in need of protection.
Order
109. The Department's application of 16 December 2010 is dismissed upon final parenting orders being made in the Family Court. In the interim [the child] remain in provisional protection and care and the matter remains adjourned.
Reasons for order
110. [The child] is not in need of protection. It is clearly not in his best interests for there to be an unconsidered return to the Respondent Mother. [The child] appears to be settled and thriving with the Respondent Father. [The child] does not want to see the Respondent Mother or even talk to her on the telephone. Unless agreement is reached or another Court decides [the child] is in need of protection, the Family Court will decide the matter. It is hard to see that it will be in [the child's] interests for there to be an epic battle in the Family Court in a few years time. Hopefully common sense will prevail. Unsatisfactory as it may be in some respects the status quo can always remain until [the child] turns 18.
Grounds of appeal
19 The grounds of appeal are as follows:
1. The learned Magistrate erred in law in that after ruling that [the child] was not in need of protection made the dismissal of the Department's protection order application conditional upon final parenting orders being made in the Family Court.
2. The learned Magistrate acted without jurisdiction or in excess of jurisdiction by making an interim order under section 133(2)(b) that [the child] remain in provisional protection and care after he had made a final decision that no protection order was required.
20 An order or other decision made on the hearing of an application under pt 4 and pt 5 of the CCS Act may be the subject of an appeal made
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- in accordance with pt 2 of the Criminal Appeals Act 2004 (WA): s 42(1) Children's Court of Western Australia Act 1988 (WA). The grounds in respect of such an appeal include that the court below made an error of law or fact or of both law and fact or that it acted without or in excess of jurisdiction. Leave is required for each ground of appeal: s 8 and s 9 of the Criminal Appeals Act.
Relevant provisions of the CCS Act
21 Section 6 of the CCS Act set out the objects of the Act. They are as follows:
Objects
The objects of this Act are -
(a) to promote the wellbeing of children, other individuals, families and communities; and
(b) to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and
(c) to encourage and support parents, families and communities in carrying out that role; and
(d) to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and
(e) to protect children from exploitation in employment.
22 The objects of an Act are relevant to the interpretation of the Act's provisions generally: s 18 Interpretation Act 1984 (WA). Section 7 provides that when performing a function or exercising a power under the Act in relation to a child the court must regard the best interests of the child as the paramount consideration. Section 8 sets out a non-exhaustive list of matters that must be taken into account in determining what is in a child's best interests.
23 The power of the Children's Court to make a protection order appears in s 45. That section provides as follows:
Court may make protection order
If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part -
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- (a) make the protection order sought in respect of the child; or
(b) make another protection order in respect of the child.
24 Section 46 provides for the 'no order principle'. That section provides as follows:
No order principle
The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.
25 A child is in need of protection if any of the four factual situations referred to in s 28(2) is established. Section 28(2) provides as follows:
(2) For the purposes of this Part a child is in need of protection if -
(a) the child has been abandoned by his or her parents and, after reasonable inquiries -
(i) the parents cannot be found; and
(ii) no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;
or
(b) the child’s parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child; or
(c) the child has suffered, or is likely to suffer, harm as a result of any one or more of the following -
(i) physical abuse;
(ii) sexual abuse;
(iii) emotional abuse;
(iv) psychological abuse;
(v) neglect,
and the child’s parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or
- (d) the child has suffered, or is likely to suffer, harm as a result of -
(i) the child’s parents being unable to provide, or arrange the provision of, adequate care for the child; or
(ii) the child’s parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.
27 Section 29 provides that provisional protection and care is a reference to a child being in, taken into, or placed in the care of the CEO. Subject to any interim order that may be made by the court the CEO has responsibility for the day-to-day care, welfare and development of a child who is in provisional protection and care. A child ceases to be in provisional protection and care if, amongst other things, the court makes or refuses to make a protection order. Section 29(3) provides:
(3) A child ceases to be in provisional protection and care if -
(a) the child is returned to or placed in the care of a person under section 38(2) or (3)(b); or
(b) the Court makes an interim order under section 133(2)(a) that the child be returned to or placed with a parent of the child; or
(c) the Court makes an interim order under section 133(2)(c); or
(d) the Court makes a protection order in respect of the child or refuses to make such an order.
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- interim order that the child is to be taken into or remain in provisional protection and care: s 133(2)(b). An interim order (with an exception not presently relevant) may be made on the court's own initiative: s 133(2A).
Merits of the appeal
29 The resolution of both grounds 1 and 2 turns on construction of the relevant provisions of the CCS Act. The Children's Court is not a court of general jurisdiction but a statutory court whose jurisdiction and powers are determined by examining the statutes under which it operates.
30 The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of the statute. This requires considering the statute as a whole. The context in which a particular provision appears must always be the starting point: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [78]. See also CIC Insurance v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408.
31 It is also important to bear in mind the nature and significance of this kind of legislation. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Deane J at 462 - 463 observed that the interests of parents in care and protection proceedings is not merely indirect or derivative in its nature, rather such proceedings directly concern and place in jeopardy the ordinary and primary rights and authority of parents as the natural guardians of an infant child.
32 Consideration may be given to the explanatory memorandum and the second reading speech in regards to the Children and Community Development Bill 2003 (WA) (the title by which the Bill that became the CCS Act began its passage through the Parliament) to confirm that the meaning of words used is the ordinary meaning taking into account the context in which they appear in the CCS Act and the purpose or object underlying the Act: Interpretation Act s 19(1)(a).
33 The explanatory memorandum is not generally of assistance in this case, however in respect of cl 133(2), which was in relevant respects in the same form as the current s 133(2), it does state that:
The purpose of interim orders is to enable the court to be flexible in responding, in the child's best interests, to their immediate needs and circumstances in advance of making any final determination' [emphasis added].
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34 The ordinary meaning of the words used in s 29(3) is that if the court refuses to make a protection order the child who is the subject of the protection application will cease to be in provisional care. The purpose of the proceedings is to determine whether the child is in need of protection. If that need is not established then no final order can be made and on refusing to make a final order the provisional protection and care status ceases.
35 Having reached a conclusion that the child in this case was not in need of protection the only appropriate course was for the court to refuse to make a protection order. That would be achieved by dismissing the application. In this case the magistrate conditioned the dismissal on the making of parenting orders in the Family Court. There were at the time (and still are) pending proceedings between the appellant and the father in the Family Court. The fact that the magistrate sought to defer the effect of his decision until the Family Court proceedings were determined underlines of the fact that those proceedings were dealing with different issues and the question of who should have custody of the child was in substance different to the question that was before the Children's Court.
36 It is plain that the magistrate was motivated by a concern that the welfare of the child may not be best served by him being returned to the appellant. His Honour appears to have been influenced by the child's wishes and the fact that the child had been living with his father for over 20 months while the provisional protection arrangements continued. But the court having decided that the child was not in need of protection questions of custody were not a matter it could then consider. The only appropriate outcome once the finding that protection was not required was made was that the application be dismissed.
37 The appellant submitted that it would never be appropriate for the Children's Court to make an order dismissing an application subject to a condition. Whether there could ever be a conditional refusal of a protection order is not a question that I need to determine for the purposes of these proceedings. What is important is that the condition imposed here had the effect of undermining the order that the application for a protection order was dismissed. There was an inherent and fundamental inconsistency between the conclusion and the result. The effect of the magistrate's order was that the dismissal was suspended and the child was to remain in provisional care for an indeterminate period and subject to an occurrence that may never in fact take place. As the magistrate himself recognised, this state of affairs could potentially continue until the child was 18 years old.
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38 The power of the Children's Court to adjourn proceedings and to make interim orders presumes the continuation of proceedings in that court. Proceedings occur for the resolution of disputes. Once all disputed issues have been resolved the findings of the court will determine the appropriate orders. A court should not defer the making of final orders where to do so deprives the successful party of the benefit of those findings.
39 In this case, the matter in dispute was whether the child was in need of protection. The finding that there was no such need required that the protection application be dismissed and the proceedings be brought to an end. Provisional protection would then cease. It follows that at that point any power to order adjournments or make interim orders would also cease. Such powers are ancillary to the continuation of proceedings and are conferred as a necessary part of the court's powers to resolve the dispute before it. Such ancillary powers cannot be given an extended life by failing to bring the proceedings to an end.
40 The fact that the best interests of the child were the paramount consideration does not mean that the provisions of the CCS Act dealing with how a protection application is dealt with can be extended beyond their ordinary meaning. The paramount consideration of the best interests of the child is to be taken into account in exercising powers under the CCS Act. The power of the court in this case was, relevantly, to determine the question of whether the child was in need of protection. There is no suggestion that the magistrate failed to take into account that consideration in dealing with that question. Once that question had been determined in the negative there was no proper basis for protection orders either of a provisional or final type.
Conclusion
41 The magistrate was in error in making his dismissal of the application conditional in the way that he did. The condition contradicted the factual findings made and deprived the appellant of the conclusion that should have flowed from those findings.
42 The magistrate was also in error in purporting to adjourn the proceedings and in making an interim order for continuing provisional protection and care. The power to make such orders could not be exercised in circumstances where the only appropriate outcome was an unconditional dismissal. The interim order was not 'interim' in any meaningful sense of that word. In the context of the Act, interim must
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- mean an order pending final determination by the Children's Court, not some other court.
43 The respondent made no concessions in this appeal and sought to justify the orders made by the magistrate. The arguments made in that regard were without merit. The effect of opposing the appeal has been to lengthen the period of provisional protection still further. What compounds this situation is that I was informed that custody proceedings in the Family Court have been deferred pending the outcome of this appeal.
44 Over two years have now passed since the child was first taken into provisional care. Furthermore, provisional protection has continued for seven months since the Children's Court decided that the child was not in need of protection. This long delay has delayed a determination being made in the Family Court as to whom the child should live with. Two years in the life of a child, who was aged 8 when first taken into care, is a long time. Circumstances may have so significantly changed over such a time that the appellant's claims to be reunited with her child may have been adversely affected.
45 As I noted earlier, provisional protection is intended to be an interim, short term arrangement. It is expedient to ensure the safety of a child prior to a protection application being resolved by the Children's Court. If there is a lengthy delay in resolving an application then the rights of the parents and the child can be compromised. If provisional protection becomes a long term arrangement the objects of the CCS Act and the utility of a court hearing are significantly undermined.
46 The magistrate in this case made some comments critical of the delay. Ultimately, however, it is the responsibility of the court to ensure that its processes are not abused.
47 Counsel for the respondent assured me that the delays experienced in this case were unique. It is to be hoped that that is correct and that such delays will neither occur, or be tolerated, in the future.
48 The orders made at the hearing of the appeal were as follows:
1. Leave to appeal on grounds 1 and 2 granted.
2. Appeal allowed.
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- 3. The orders of the magistrate be set aside and in lieu thereof the order be that the respondent's application of 16 December 2010 for a protection order is dismissed.
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