JLS v Chief Executive for Department of Child Protection (No 3) - [2022] SASCA 2

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
JLS v CHIEF EXECUTIVE FOR DEPARTMENT OF CHILD PROTECTION & ANOR (No 3)
[2022] SASCA 2
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Bleby)
16 December 2021
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN
Application for leave to appeal against the decision of the Chief Justice, who summarily dismissed the applicant’s application for habeas corpus to determine the legality of her son’s removal. The removal was purportedly pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA).
Following his initial removal, the child was placed under the guardianship of the Chief Executive guardianship pursuant to s 53(1)(e) of the Act. The applicant contended that a lawful removal under s 41 was a necessary condition of a lawful guardianship under s 53(1)(e). The Chief Justice rejected that contention.
Held (by the Court), refusing leave to appeal and dismissing the appeal:
1. An order under s 53(1)(e) is not dependent on the existence of a lawful removal under s 41(1). The appeal is wholly without merit.
Children and Young People (Safety) Act 2017 (SA) ss 41, 43, 53, 56; Youth Court Act 1993 (SA) s 22, referred to.
Re Luck (2003) HCA 70; Dudley v A Judge of the County Court of Victoria [2020] VSCA 179; RP v Foreman [2021] VSCA 115; Jennings v Police (2019) 133 SASR 520, considered.

JLS v CHIEF EXECUTIVE FOR DEPARTMENT OF CHILD PROTECTION & ANOR (No 3)
[2022] SASCA 2

THE COURT (ex tempore): On 30 August 2021, the Chief Justice summarily dismissed the applicant's application for habeas corpus to determine the legality of what she contended was the detention of her son, ‘H’.
On 2 June 2021, persons identifying as child protection officers of the Department for Child Protection, in company with the police, forcibly removed H from the applicant's home. They did so purportedly pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) (‘the Act’).
The apparent basis for this removal was the Chief Executive's concern that the applicant suffered from poor mental health and that a symptom of this was that she would fabricate medical conditions or symptoms indicative of medical conditions from which she claimed H to be suffering.
Section 41(1) of the Act provides:
41—Removal of child or young person
(1) Subject to this section, if a child protection officer believes on reasonable grounds that—
(a)a child or young person has suffered, or there is a significant possibility that a child or young person will suffer, serious harm; and
(b)it is necessary to remove the child or young person from that situation in order to protect them from suffering serious harm or further serious harm; and
(c)there is no reasonably practicable alternative to removing the child or young person in the circumstances,
the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose.
Section 43(1) of the Act then provides that where a child or young person is removed under s 41, if the Chief Executive does not already have custody of them, they have custody of them by force of that section.
Sometime between 2 June 2021 and 9 June 2021, the Chief Executive then brought an application in the Youth Court for one month guardianship order. On 9 June 2021, the Court made an ancillary interim guardianship order until the next adjourned hearing. The applicant then applied to have that interim order revoked. The Court heard that application on 30 June 2021 but determined to continue the interim guardianship order.
Those interim guardianship orders were made pursuant to s 53(1)(e), which provides:
53—Orders that may be made by Court
(1) If, on an application under this Act, the Court is satisfied that it is appropriate to do so, the Court may make 1 or more of the following orders in relation to a child or young person:
…
(e)an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of the Chief Executive;
Section 56(3) in conjunction with s 53(2) permits the court to make interim guardianship orders on an adjournment for the period of the adjournment, in the course of the proceedings.
Meanwhile, on 9 June 2021, the applicant made an application for habeas corpus, to determine the legality of the detention of H following his initial removal.
The applicant's argument rested on a contention that the Chief Executive had not produced evidence to prove that H had been lawfully removed pursuant to s 41 of the Act.
To this end, the applicant sought production of the written authorisation by the Chief Executive to the relevant child protection officer pursuant to s 147(1) of the Act and complained that she had not received this. She also complained of a lack of evidence of ‘prior approval’ by the Chief Executive of the removal, as mandated by s 41(4) of the Act.
The effect of the applicant's submission was that the lawfulness of a guardianship order under s 53(1)(e) was dependent on the lawfulness of the removal, and that in the event of an unlawful removal, there was no authority under s 53 to make an application for a guardianship order.
The Chief Justice rejected the contention that a lawful removal under s 41 was a necessary condition of a lawful guardianship order under s 53(1)(e). He observed that this contention was inconsistent with the broader operation of the Act. Thus, there are occasions of planned removals where guardianship orders can be obtained in advanced of a removal. Guardianship orders may also be made on a voluntary basis.
More fundamentally, the Chief Justice observed that the applicant's argument would cause manifest inconvenience and uncertainty, where the interests of the child depended on certainty. Collateral challenges such as these would be dependent not on an assessment of the best interests of the child, but of technical legal arguments that may well be unrelated to that central consideration. As the Chief Justice concluded:
It is, unthinkable that Parliament intended guardianship orders to be vulnerable to technical challenges of that kind. In the absence of an express indication, or necessary implication, to that effect I do not construe the Act.
Consequently, the Chief Justice similarly dismissed the applicant’s application for habeas corpus.
We observe further that the order under s 53(1)(e) was made by the Youth Court, which is an inferior court of record. The applicant did not attempt to appeal against that order pursuant to s 22 of the Youth Court Act 1993 (SA). The result is that the guardianship order operates as a lawful court order. Habeas corpus will not issue to impugn a lawful order of a court.[1] In addition, the effect of that lawful order was not to detain H in custody. Rather, it was to place H under the guardianship of the Chief Executive.[2] However, the Chief Executive does not rely on this distinction in defence of the summary dismissal. having not argued it before the Chief Justice. We express no view on whether habeas corpus is available in this context.
[1] See Dudley v Judge of the County Court of Victoria [2020] VSCA 179 at [39]-[45] (Priest and Kaye JJA).
[2] RP v Foreman [2021] VSCA 115 at [29] (Beach, Niall and Kennedy JJA).
The applicant's Notice of Appeal is lengthy, and the grounds are diffuse. The range of complaints extends to the following:
·that on 9 June 2021, no order was made by the Youth Court and the records showing to the contrary is a fabrication;
·the Youth Court acted outside of its powers when making the interim orders;
·the Chief Justice was misled as to the true factual position and with respect to the law, and that H had been unlawfully ‘kidnapped’ by a failure to adhere to the provisions of s 41 of the Act;
·that in various ways the Chief Justice misconstrued s 41;
·that the Chief Justice failed to comprehend or understand the failure to comply with s 41;
·that the Chief Justice erred in failing to inquire into and otherwise make findings as to facts of the removal;
·that the Chief Justice erred in applying the law for the facts;
·that the applicant was not provided with natural justice;
·that the hearing was miscarried in various ways by reason of noncompliance with rules of practice and procedure and admission of evidence; and
·that the Chief Justice otherwise did not comply with the processes set out in the Uniform Civil Rules.
This is a summary of the various complaints. It is not exhaustive. For the most part, the complaints are not directed to the merits of the decision. However, for the reasons already given, there is no possible basis on which an application for habeas corpus could have succeeded. Insofar as the grounds can be said to challenge the primary conclusion of the Chief Justice, that an order under s 53(1)(e) is not dependent on the existence of a lawful removal under s 41(1), the appeal is without merit.
There are two matters of procedure. The respondent contends, having regard to the authority of the High Court Re Luck,[3] that the dismissal of an action on the ground that it discloses no reasonable cause of action is an interlocutory order, and that leave to appeal is required under UCR 213.1(1)(a). Whether an order is final or interlocutory has long been the subject of difficult questions and differing views.[4] Here, in any event, the Chief Justice clearly dismissed the application on the ground that it disclosed no reasonable cause of action.
[3] (2003) HCA 70 at [9].
[4] See, by comparison, Jennings v Police (2019) 133 SASR 520 at [31] (Kourakis CJ, Stanley and Parker JJ agreeing).
Secondly, the appellant requires an extension of time to file the Notice of Appeal. The Chief Justice's ruling was delivered ex-tempore on 30 August 2021. The applicant complains, in the Notice of Appeal, that the settled ruling was only made available to her on 22 September 2021 and that she then acted promptly. However, even allowing for the claimed delay and delivery of the settled reasons, there is no explanation by affidavit for the further delay of six and a half weeks from that date before the Notice of Appeal was filed.
The Chief Executive has not, however, taken issue with the delay in filing the Notice of Appeal. In any event, it is not necessary to interrogate the precise reasons for that delay. The appeal is wholly without merit. There is no utility in granting an extension of time.
Leave to appeal is refused and the appeal is dismissed.