JP v Chief Executive of the Department for Child Protection

[2023] SASCA 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

JP v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2023] SASCA 89

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice Stanley and the Honourable Justice Stein)

17 August 2023

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION

The applicant is the mother of H. H has significant disabilities and requires constant care. H was removed from the care of his parents in 2019 pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) after H’s admission to hospital. The applicant and her husband were charged with criminal neglect of H. In June 2020 an order placing H under the guardianship of the Chief Executive of the Department for Child Protection until he is 18 years of age was made by consent with no admission of liability by the applicant and H’s father of the criminal allegations against them.

In September 2022, after the criminal charges were dismissed, the applicant filed an application seeking to revoke, vary or discharge the guardianship order. A Magistrate of the Youth Court refused that application on the basis that, if allowed, there was a real risk of disruption to H’s current care arrangements which would place H at risk of harm given his disabilities and total dependency on his carers.

The applicant appealed from the Magistrate’s decision. On 31 January 2023, a Judge of the Youth Court refused an extension of time to appeal and dismissed the appeal, holding that the applicant had failed to establish any error in the Magistrate’s decision, the appeal was without merit and the Magistrate had arrived at the proper conclusion.

The applicant sought an extension of time to appeal to the Court of Appeal. The respondent opposed a grant of leave and an extension of time.

Held, refusing leave to appeal and an extension of time:

1.The applicant has failed to identify any error in the approach of the Judge in finding there was no error in the approach of the Magistrate. The grounds of appeal lack merit and the applicant has not identified a substantial injustice to justify a grant of leave. The applicant retains the ability to make a further application under s 55 of the Children and Young People (Safety) Act 2017 (SA) to vary or revoke the guardianship order.

2.As the appeal is without merit, an extension of time should be refused.

Children and Young People (Safety) Act 2017 (SA) ss 7, 41, 52(2), 55; Youth Court Act 1993 (SA) s 22(2); Uniform Civil Rules 2020 (SA) rr 212.2, 213.1, referred to.
House v The King (1936) 55 CLR 499; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27, considered.

JP v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION
[2023] SASCA 89

Court of Appeal – Civil:  Lovell JA, Stanley and Stein AJJA

THE COURT.

Background

1. The applicant is the mother of H.  H was born on 21 December 2006 and is aged 16 years old.  H has autism spectrum disorder, a severe intellectual disability and a seizure disorder of unknown origin with associated acquired brain injury. H has limited mobility and is non-verbal.  H relies completely on his caregivers to meet all of his needs. 

2. H was removed from the care of his parents on 15 March 2019 pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) (the “CYPS Act”).  This occurred after H was admitted to the Women’s and Children’s Hospital on 15 March 2019 weighing only 25 kilograms which placed him significantly below the third percentile of weight for his age.  H remained an inpatient until 30 May 2019. 

3. The applicant and her husband were charged with criminal neglect of H. 

4. On 5 June 2020, an order placing H under the guardianship of the Chief Executive of the Department for Child Protection until he attained the age of 18 years was made pursuant to s 54(2) of the CYPS Act (“guardianship order”).  The guardianship order was made with the consent of all parties, with no admission by the applicant and H’s father of the criminal allegations made against them.  The guardianship order was made after the applicant signed a document which, among other things, referred to the applicant having considered carefully advice given to her by her solicitor, stated that she wished to consent to the guardianship order without admitting the allegations, that she understood that she could make an application to vary or revoke the guardianship order at any time and it had been explained to her that any further application would not necessarily be easy to achieve.

   Application to revoke guardianship order

5. The criminal charges against the applicant and H’s father were dismissed on 17 March 2021. On 8 September 2021, the applicant filed an application pursuant to s 55 of the CYPS Act seeking to revoke, vary or discharge the guardianship order.

6. On 26 October 2022, the Magistrate delivered reasons for refusing the application. The Magistrate considered that he did not need to make findings about various matters put forward by the applicant at trial as the central issue for the revocation application was whether it was appropriate to disturb H’s current care arrangements. The Magistrate considered the evidence established that H is in a care setting which is meeting all of his needs, H is cared for by trained carers, has more than doubled his weight, is attending school and is enjoying significant supports. The care arrangements are expensive and funded partly by the NDIS and by the Department. The Magistrate noted the applicant’s concession that she was unable to provide H with accommodation or to meet the expenses that would be associated with maintaining the level of care H currently enjoys. Accordingly, the Magistrate considered there was a real risk that revoking the order would result in disruption to H’s current care arrangements and/or a reduction of the level of care H was receiving. Such an outcome would be inconsistent with the priorities in the CYPS Act and place H at risk of harm given his disabilities and his total dependence upon his carers. The Magistrate considered those reasons alone justified his decision to dismiss the application to revoke the guardianship order.

   Appeal from the Magistrate’s refusal to revoke the guardianship order

7. The applicant appealed from the Magistrate’s decision.  On 31 January 2023, a Judge of the Youth Court refused an extension of time to appeal and dismissed the appeal.  The Judge observed that the appeal was by way of re-hearing from an interlocutory decision and constituted an appeal against an exercise of discretion.  Accordingly, it was necessary for the appellant (the applicant in these proceedings) to establish an error of the kind in House v The King.[1]  After considering each of the grounds of appeal, the Judge determined that each must fail, the appeal was without merit and accordingly there was no basis to grant an extension of time.  

   [1] (1936) 55 CLR 499.

8. The grounds of appeal against the Magistrate’s decision included assertions that the facts of the case had not been properly considered and the applicant only agreed to the guardianship order because of incorrect legal advice and various statements in relation to the applicant’s intentions about the accommodation she would provide for H, H’s state of health, the applicant’s level of cooperation and the challenges of legally representing herself. 

9. The Judge addressed each of the grounds of appeal and rejected them. It is not necessary to refer to all of the Judge’s reasons. They included that while the Magistrate did not make findings with respect to much of the evidence called, the Magistrate determined the application on the evidence properly before him. In the circumstances of H’s disabilities and complete dependence upon his carers, the Magistrate arrived at the proper conclusion in determining that the disruption to H’s care that would follow from revocation of the guardianship order would place H at risk of harm and be inconsistent with priorities in the CYPS Act. The Judge concluded the Magistrate did not err and the exercise of his discretion had not miscarried. Accordingly, the appeal was without merit and there was no basis to grant an extension of time.

   Appeal to this Court

10. By a notice of appeal dated 2 May 2023, filed out of time, the applicant seeks an extension of time to appeal against the decision of the Judge.  The respondent opposes a grant of leave to appeal and opposes an extension of time.

11. An appeal lies from an interlocutory judgment of the Judge of the Youth Court to a single Judge of this Court and an appeal against a final judgment by a Judge of the Youth Court lies to the Court of Appeal.[2]  Leave to appeal is required against a judgment on appeal.[3]  On 2 June 2023, an order was made listing an application for leave to appeal and an application for an extension of time to be heard and determined by the Court of Appeal.

    [2]     Youth Court Act 1993 s 22(2); Uniform Civil Rules 2020 (SA) r 212.2.

    [3]    Uniform Civil Rules 2020 (SA) r 213.1.

12. The applicant is not represented.  The grounds of appeal in this Court largely replicate the grounds upon which the applicant appealed from the Magistrate’s decision and which were rejected by the Judge.

13. During the hearing before us the applicant contended, among other things, that H was illegally removed, that children are best off with their parents and as his caring, cooperative, willing parent, she should be H’s primary carer.  The applicant conceded that she does not have in place current arrangements for suitable accommodation and other care supports.  However, she asserted that she is prevented from doing so because of the way the Department has dealt with her and her various requests.  The applicant asked the Court to make orders to require the Department to take particular steps.  The applicant considers the system unfair and seeks the intervention of this Court to use its powers to correct the perceived injustice.

14. This is a second appeal.  When determining whether to grant leave to appeal, while the Court ultimately acts in the interests of justice, it will consider whether the decision the subject of the application for leave is attended with sufficient doubt to warrant its reconsideration on appeal, whether it raises an issue of general principle or importance and whether allowing the decision to stand would work a substantial injustice to the applicant.[4] 

    [4]     M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27 at [7] per Doyle and Livesey JJA.

15. The applicant’s application to the Magistrate was for revocation of the guardianship order which was validly made. The Magistrate correctly identified the relevant question for his consideration and dismissed the application for reasons which included the applicant’s concessions referred to above. The applicant has not identified any error in the approach of the Judge in finding there was no error in the approach of the Magistrate. The grounds of appeal lack merit and do not identify any issue of general principle or importance. The applicant has not established substantial injustice to justify a grant of leave. While there is no doubt that the applicant loves her son and the guardianship order is causing her great distress, the appeal grounds are not reasonably arguable. The applicant retains the ability to make a further application pursuant to s 55 of the CYPS Act to vary or revoke the guardianship order. If any such further application is made, it will fall for consideration on the facts and circumstances supporting any such application at the time, in particular, whether the applicant can establish circumstances justifying reconsideration of H’s current care arrangements consistent with the overriding consideration of protecting H from harm.[5] 

    [5]     Children and Young People (Safety) Act 2017 (SA) s 7.

    Extension of time

16. As the appeal is without merit and does not justify leave, there is no utility in granting an extension of time. 

    Orders

17. The applications for an extension of time and leave to appeal are refused.