Minister for Families and Communities v R, A - [2008] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MINISTER FOR FAMILIES AND COMMUNITIES v R, A & ORS
[2008] SASC 128
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice David)
13 May 2008
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - APPOINTMENT BY COURT
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE LEGISLATION - CHILDREN IN NEED OF PROTECTION - PROCEEDINGS RELATING TO CARE AND PROTECTION - ORDERS
Appeal from order of Youth Court judge made pursuant to s 38(1) of the Children’s Protection Act 1993 (SA) to place child under guardianship of Minister for Families and Communities - whether order should have been for period not exceeding 12 months pursuant to s 38(1)(c) of the Children's Protection Act 1993 or until the child attains 18 years of age pursuant to s 38(1)(d) of the Children’s Protection Act 1993 - short or long term order - series of short term orders already made in relation to the child - construction of general rule in s 38(2a) of the Children’s Protection Act 1993 - legislative history and amendments - reversal of general rule - preference for long term guardianship order to series of temporary arrangements - supervision of Minister for Families and Communities relating to guardianship - whether chances of finding a placement under long term guardianship order as opposed to short term guardianship order a factor capable of displacing the general rule - review of circumstances of child under long term guardianship of Minister for Families and Communities provided by s 52 of the Children’s Protection Act 1993 - no evidence establishing worsened chances of placement if long term guardianship order made as opposed to short term guardianship order.
Held: Appeal allowed - judgment of Youth Court set aside - child to be placed under guardianship of Minister for Families and Communities until child attains 18 years of age pursuant to s 38(1)(d) of the Children’s Protection Act 1993.
Children's Protection Act 1993 (SA) s 38(1)(c), s 38(1)(d), s 38(2), s 38(2a), s 52; Children's Protection and Young Offenders Act 1979 (SA) s 14(1)(a); Children's Protection (Miscellaneous) Amendment Act 2005 (SA) s 16; Youth Court Act 1993 (SA) s 22(3), referred to.

MINISTER FOR FAMILIES AND COMMUNITIES v R, A & ORS
[2008] SASC 128
Full Court: Doyle CJ, Anderson and David JJ

DOYLE CJ. I would allow the appeal. I agree with the orders proposed by David J and with his reasons.
ANDERSON J. I agree with David J that the appeal should be allowed and I agree with the orders he proposes. I also agree with his reasons.
DAVID J.
Introduction
This is an appeal, pursuant to s 22(3) of the Youth Court Act 1993 (SA), against a decision of a judge of the Youth Court of South Australia (the “Youth Court”), to place a child (“A”) under the guardianship of the Minister for Families and Communities (“the Minister”) for a period of 12 months.
The Minister argues that the judge should have made an order placing A under the Minister’s guardianship until he attained the age of 18 years.
It was neither contested before the Youth Court, nor argued on appeal, that the making of an order placing A under the guardianship of the Minister was not appropriate. What is contested is whether the judge’s order should have been for a period not exceeding 12 months (“a short term order”), or whether the order should apply until A attained the age of 18 years (“a long term order”). The Minister argues that the judge fell into error in making a short term order.
The decision in this appeal turns on the scope of the power conferred by s 38(1) of the Children’s Protection Act 1993 (SA) (“the 1993 Act”), and whether the judge has used that power giving proper weight to the “general rule” in s 38(2a) and the evidence.
Background Facts
A was aged ten and a half years at the time of the order which is the subject of this appeal. His natural parents are the second and third respondents, who have played no part in either the Youth Court proceedings or in this appeal. A has three siblings: an older sister, an older brother and a younger half brother.
On 10 September 2007, the Minister filed an application in the Youth Court in relation to all four children. The application sought orders pursuant to s 38(1) of the 1993 Act to place all four children under the guardianship of the Minister until they attained the age of 18 years, and included ancillary orders providing for access. The grounds of the application were that the second and third respondents had abused the children, and were unable to care for and protect them or exercise adequate supervision and control over them.
Final orders were made on 17 October 2007 in relation to the two eldest siblings, and on 5 November 2007 in relation to the youngest sibling. These orders were in the terms of the aforementioned application, and the three siblings were put in home-based foster care placements.
At the time of the application A was under the care of the Minister, and had been placed in the Gilles Plains Residential Unit (“the Unit”). An emergency family‑based foster care placement had broken down as a result of his aggressive and difficult behaviour. A was described as one of “the most difficult children [the paediatrician] had ever seen”.[1] A had also previously been placed under a series of temporary arrangements for guardianship in the form of two voluntary custody agreements and one 12 month guardianship order, pursuant to s 38(1)(c) of the 1993 Act.
[1] Families SA, Report in Support of Care and Protection Order Pursuant to s 37 of the Children’s Protection Act 1993, 6 September 2007, p 22.
A trial commenced in the Youth Court on 15 November 2007 in relation to A. As a consequence, on 21 December 2007 the judge made the order which is the subject of this appeal. The Minister had applied for a guardianship order over A, pursuant to s 38 of the 1993 Act. It was not contested that the grounds of the application were made out, namely that A was at risk, and an order should be made. The issue at trial, as it is on appeal, was the length of the order sought. The child representative acting for A opposed the making of a long term order on the ground that A’s living arrangements were not settled and stable. The judge found that a short term order, pursuant to s 38(1)(c) of the 1993 Act, was in A’s best interests and ordered accordingly. The Minister now appeals against that decision and argues that a long term order should have been made.
Relevant Legislation
Section 38 of the 1993 Act provides:
Court's power to make orders
(1)If the Court finds, on an application under this Division, that the grounds of the application have been made out and that an order under this section should be made in respect of the child, the Court may exercise 1 or more of the following powers:
(a)     the Court may require a parent, guardian or other person who has the care of the child, or the child, to enter into a written undertaking (for a specified period not exceeding 12 months) to do any specified thing, or to refrain from doing any specified thing and, if the Court thinks fit, require the child to be under the supervision of the Chief Executive or some other specified person or authority for the duration of the undertaking;
Example—
A parent, guardian or other person could, for example, be required to enter into an undertaking to undergo treatment for drug abuse, to submit to periodic testing for drug use and to authorise the release of information regarding such treatment, and the results of such testing, to the Chief Executive.
(b)     the Court may grant custody of the child, for a specified period not exceeding 12 months, to one of the following persons:
(i)a guardian of the child;
(ii)some other member of the child's family;
(iii)the chief executive of a licensed children's residential facility, for placement of the child in such of those facilities as that officer from time to time thinks appropriate;
(iv)the Minister;
(v)any other person that the Court thinks appropriate in the circumstances of the case;
(c)     the Court may place the child, for a specified period not exceeding 12 months, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(d)     the Court may place the child, until the child attains 18 years of age, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
…
(2)Before the Court makes an order giving custody or guardianship of a child to a person who is not a parent of the child, the Court must be satisfied—
(a)     that there is no parent able, willing and available to provide adequate care and protection for the child; and
(b)     that the order is the best available solution having regard to—
(i)the child's need for care and protection (including emotional security); and
(ii)the child's age, developmental needs and emotional attachments.
(2a)If a child is to be placed in guardianship the Court must consider the importance of settled and stable living arrangements for the child and, as a general rule, a long term guardianship order (ie an order under subsection (1)(d)) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child.
(3)If the Court finds that a child is at risk because a person other than a guardian with whom the child resides has abused, neglected or threatened the child, the Court cannot make an order removing the child from the guardianship or custody of the guardians with whom the child resides unless satisfied that they knew, or ought to have known, of the abuse, neglect or threats.
(4)If the Chief Executive or some other specified person or authority is, by order of the Court, to supervise a child who has entered into an undertaking, the supervisor may exercise such powers as the Minister authorises either generally or in relation to a particular supervisor.
Section 52 of the 1993 Act states:
Review of circumstances of child under long term guardianship of Minister
(1)If a child is subject to an order placing the child under the guardianship of the Minister until the child attains 18 years of age, a review of the circumstances of the child must be carried out at least once in each year that the child remains subject to the order.
(2)The review will be carried out by a panel appointed by the Minister for the purpose.
(3)The panel carrying out a review must keep under constant consideration whether the existing arrangements for the care and protection of the child continue to be in the best interests of the child.
(4)Subject to subsection (5), the Minister must cause a copy of the conclusions reached by a review panel to be given to the child, the child's guardians and the persons who have the care of the child.
(5)The Minister is not obliged to give a copy of the panel's conclusions to a particular person if—
(a) the Minister is of the opinion that it would not be in the best interests of the child to do so; or
(b) the whereabouts of the person cannot, after reasonable enquiries, be ascertained.
The Judge’s Reasons
In his reasons for giving a short term order, the judge set out in detail the extreme and sad behavioural problems exhibited by A. He also emphasised the Minister’s plan to address A’s behavioural problems, and at the same time, place him on a waiting list for a suitable family placement. On the unchallenged material presented to him, the judge found that no fixed timetable could be incorporated into that plan, and that the Minister must proceed with caution in order that an appropriate and successful placement could be made.
The judge then had regard to the provisions of the 1993 Act, including the objects and fundamental principles in ss 3 and 4. The judge considered that though s 38(2a) of the 1993 Act was the focus of argument, the provision is not definitive. It merely sets out one of the issues that need to be considered before making a guardianship order. In the judge’s view, the “general rule forms part of the consideration that the Court must give to the importance of settled and stable living arrangements” and this consideration “could entail facilitating bringing [such arrangements] about”.
In his reasons the judge then held that a short term order was appropriate, because if a long term order was made, A would be at risk of “languishing” in transitional care. The judge said:
As noted, the crux of this case is whether to make the long term Order now, or whether to make a further 12 month Order and make the inevitable long term Order in due course.
Against making the long term Order now, is the risk that [A] will languish at the Gilles Plains Unit, for an unsatisfactory period of time. There is a risk of this. The Minister’s case acknowledges that there is a significant shortfall between children in need of placement, and available foster carers. Accordingly, for any child in transitional care awaiting placement, there is, on the statistics, a risk of delay in obtaining placement.
[A’s] case has additional complexities. His behavioural issues mean that he needs to be placed within what is called “therapeutic family care”. These are specially trained carers with the requisite skills, and provided with appropriate professional back‑up. This means that [A] will need to be matched with an appropriate therapeutic foster placement. Such placements are very limited, and there are no guarantees about future availability.
Further on the judge said:
In a situation such as [A’s], the Court can make a short term Order, leaving it to the Department to find the family care that is in [A’s] best interests, before obtaining a long term Order. If a suitable placement came up at any stage, it would be a relatively straight forward procedure to return to the Court and obtain the long term Order, by consent. The granting of the short term Order would be instrumental in keeping some pressure on the Department to secure what is in [A’s] best interests.
He then added:
Ms Penna noted that in the last 3 years the number of children requiring family based care had grown from around 900 to around 1,300. Recruitment of foster carers has not kept up with this increase. The current shortfall is in the order of 100. [Footnote omitted]
These figures demonstrate the crux of the issue in this case. It would be tempting for the Court to sign off on a long term Order, and leave the problem with the Department. But would this response be in the best interests of [A], who is part of that group? This case cannot be driven by file management of either the Court, or the Department. I consider it is not in [A’s] interests to be consigned, for an indeterminate term, up to seven and a half years, to that logjam of cases. There is a readily available alternative. As soon as a suitable family placement is found, a long term Order can promptly be made. In the meantime, a 12 month order will keep the search for a placement very much on the agenda.
The judge also said:
The evidence is that, presently, short term Orders do, to some extent inhibit the obtaining of long term care arrangements. As noted, I consider there is no need for that to be the case. But, insofar as it is the case, I take that into account. It would not be in [A’s] best interests for the Court to contribute to the difficulty in securing a suitable long term placement. But in my view this factor is outweighed by the other matters I need to consider, especially the risk of languishing.
Finally the judge said:
In my view, a long term Order in anticipation of an appropriate placement, carries an unacceptable risk of [A] languishing too long in transitional care. It is, therefore, not in his best interests. Nor is it the best available solution having regard to [A’s] need for care and protection, and his age, developmental needs and emotional attachments. What is in his best interests, and the best available solution, is the long term therapeutic family care recommended by the Departmental experts. It follows that a Guardianship Order is the best available solution, but at this stage a short term Order, for the reasons I have given.
It can be seen that the basis of the judge’s decision was to keep pressure on the Minister by making a further short term order, even though on his own findings it would be inevitable that a long term order would eventually be made.
Grounds of Appeal
The issue at trial was the nature of the order: whether it should be short term or long term. In essence, that issue remains the only issue on appeal. The appellant concedes that the power under s 38(1) is a wide one, but asserts that the judge failed to properly exercise his powers under the section. The appellant argues that the judge failed to have proper regard to the “general rule” in s 38(2a) that a long term order is to be preferred.
The eight separate grounds of appeal all relate, in fact, to ground 1, which is the issue of whether the judge ought to have made a long term order on the basis of the evidence before the court:
1.The learned judge erred in failing to make an order pursuant to section 38(1)(d) of the Act placing the child under the guardianship of the Minister to age 18 (“a long term guardianship order”) in circumstances where
(a)     the child representative had conceded and the judge had concluded that the child would inevitably need to remain in the guardianship of the Minister to age 18;
(b)     there was expert evidence to the effect that a long term guardianship order was in the best interests of the child and there was no expert evidence to the contrary;
(c)     there was no proper or sufficient basis in fact or law for concluding that such order was not in the best interests of the child.
2.The learned judge failed to have due regard to the “general rule” prescribed by s 38(2a) of the Act in that he failed to accept that there is generally good reason for preferring a long term order to a series of temporary arrangements for the guardianship of the child.
3.The learned judge erred in rejecting, discounting or regarding as “neutralised”, expert evidence that a long-term guardianship order would be in the best interests of the child when
(a)     there was no contrary expert evidence,
(b)     the factors or views relied upon by the learned judge for this purpose are factually and legally incorrect, are unsupported by any adequate evidence, and/or do not logically “neutralise” the significance of the evidence or support the rejection or discounting of the evidence, and
(c)     the expert witnesses were not afforded a reasonable opportunity for commenting on or responding to the matters relied on by the learned judge to discount or reject their evidence or to regard it as “neutralized”.
4.The learned judge erred in
·        finding, contrary to the evidence, that there was a risk that the child would be left to “languish” in an undesirable placement;
·        assuming, without any adequate evidentiary basis, that such risk would be increased by the making of a long term guardianship order and would be reduced by the making of a 12 month guardianship order; and
· attaching so much weight to this “risk” that it was regarded as outweighing or displacing the “general rule” in s 38(2a) of the Act and the expert and other evidence in the case.
5.The learned judge erred in concluding that annual reviews under s 52 of the Act were the “only real safe-guard against children languishing in transitional care arrangements”.
6.The learned judge erred in assuming, contrary to the expert evidence and without any adequate evidentiary basis, that a suitable family foster placement was more likely to be found for the child if he made a short-term guardianship order.
7.The learned judge erred in regarding the circumstances of a previous case (Re: P) as providing some support for this assumption when the circumstances of the previous case were not the subject of evidence in this case and there was no proper basis for thinking that the circumstances of the previous case logically supported such assumption.
8.The learned judge erred in making a twelve month order for no purpose other than to supervise the way in which the Department discharged its statutory functions.
Arguments on Appeal

The Minister argues that the judge’s interpretation of s 38(2a), namely, that the section merely indicates one of the issues which has to be taken into account, rather than any explicit requirement for a long term order, is erroneous. The Minister argues that there is a clear legislative intent that unless there is good reason to order otherwise, a long term order should be made. The argument is supported by considering the legislative history leading up to the enactment of s 38(2a).
Prior to the enactment of the 1993 Act, the power to make orders for the protection of children was contained in s 14 of the Children’s Protection and Young Offenders Act 1979 (SA) (“the 1979 Act”). Section 14(1)(a) of the 1979 Act allowed the Children’s Court to make an order for guardianship by the Minister “for such period of time as the Court thinks fit”. There was no equivalent to s 38(2a). The 1993 Act, when first enacted, however, included s 38(2), which was in the following terms:
(2)In relation to orders under subsection (1)(d) (placing a child under guardianship until 18), the Court—
(a)     should not, as a general rule, consider making such an order in relation to a child unless satisfied that no other order would in all the circumstances of the case be appropriate; but
(b)     should, in the interests of securing a settled and permanent living arrangement for the child, consider making such an order if some other order under this section has been, or will have been, in force in relation to the child for a period of two years (or a number of such orders have, or will have, between them been in force for that period).
This section was replaced with the current s 38(2) and (2a) in 2005.[2] It can be seen that the clear legislative intention, in emphasising the preference for long term placements, has reversed the general rule found in s 38(2)(a) as first enacted.
[2]    Children’s Protection (Miscellaneous) Amendment Act 2005 (SA) s 16.
The appellant further argues that the judge’s reasons for preferring a short term order are flawed in principle, and are not supported by the evidence.
It is clear from the judge’s reasons that he made a short term order so as to keep pressure on the Minister to find a placement. In other words, if a long term order was made, A would “languish” in the Unit, and there would be less chance of him being placed in a family situation, which all parties agree is the ultimate aim. Implicit in the judge’s reasoning is that by the use of a short term order there will be a form of supervision, and the matter will not be allowed to drift. The appellant argues that such reasoning is inappropriate and, as such, cannot displace the general rule.
The appellant further argues that even if it were the case that that is a proper ground for departing from the general rule and making the short term order, there was no evidence before the judge justifying the conclusion that A would “languish”, and that there would be less chance of a placement. A’s counsel conceded in argument that there was no such evidence. Indeed, in the judge’s reasons, quoted above, he reluctantly accepted evidence to the contrary.
The respondent argues that the judge has not erred in giving as his reason for imposing a short term order the need to put pressure upon the Minister, because there is a shortage of care workers. However, in argument, counsel for the respondent conceded that a shortage of care workers would not be improved whether a short term order or a long term order was made.
Conclusion
It is agreed by all parties, and it is clear that because of A’s situation with his parents, a long term order is inevitable. It is also clear that it would be best for A if a suitable placement could be made as soon as practicable.
There was no evidence before the judge that a short term order, as distinct from a long term order, would affect the likelihood of an appropriate placement. There was also no evidence that if a long term order were made, the Minister would make less effort in obtaining an appropriate placement, in other words, allowing the child to “languish”. Section 52 of the 1993 Act requires that if a long term guardianship order is made, there must be a review at least once a year. This is the proper avenue for the review of the department’s functions.
In my view, there was no proper reason for the judge to impose a short term order, bearing in mind the legislative intent set out in s 38(2a) of the 1993 Act and the fact that there was no relevant evidence to displace the general rule. There was no evidence to support the approach taken by the judge. There was no basis for the judge to act on an opinion or belief that his approach was appropriate. There was no proper reason, on the construction of the 1993 Act, not to make the order that the Minister sought.
I would allow the appeal. I would set aside the judgment and order that A be placed under the guardianship of the Minister until he attains 18 years of age in accordance with s 38(1)(d) of the 1993 Act.