Re Bella

[2013] NSWSC 1034

Supreme Court

New South Wales

Medium Neutral Citation:	Re Bella [2013] NSWSC 1034
Hearing dates:	24 July 2013
Decision date:	24 July 2013
Jurisdiction:	Equity Division - Protective List
Before:	White J
Decision:	Refer to para [32] of judgment.
Catchwords:	PROCEDURE - joinder - application to join applicants as parties pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 - proceedings in protective jurisdiction of the Supreme Court - effect of exercise of parens patriae jurisdiction on meaning of "necessary" in r 6.24(1) - whether exists analogy with joinder pursuant to s 98(3) of Children and Young Persons (Care and Protection) Act 1998
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Children (Care and Protection) Act 1987 and the Family Law Act 1975 (Cth)
Cases Cited:	Director General of the Department of Community Services; Re Thomas [2009] NSWSC 217 Re June [2013] NSWSC 969 Director General of New South Wales Department of Community Services v Y [1999] NSWSC 644
Category:	Interlocutory applications
Parties:	Foster Parents (Applicants) Director General, Department of Family and Community Services (1st Plaintiff) Minister for Family and Community Services (2nd Plaintiff) Mother (1st Defendant) Bella (3rd Defendant)
Representation:	Counsel: Ms M Barnett (Applicants) G Moore (Plaintiffs) R Dart (Bella) In Person (1st Defendant) Solicitors: Crown Solicitors (Plaintiff) Legal Aid (Bella)
File Number(s):	2013/60179

Judgment

1. HIS HONOUR: These proceedings concern a young person known as Bella. That is not her real name. It is a pseudonym used for the purposes of these proceedings.

1. On 26 February 2013, on the application of the Director General of the Department of Family and Community Services, I made orders authorising the detention of Bella in secure premises in order that she could be provided with care, treatment and education and to protect her from self-harm.

1. Bella was born in February 2000 and is now 13. On 11 March 2002 final care orders were made in the Children's Court giving the Minister parental responsibility for her. The jurisdiction to make the orders of 26 February 2013 has been considered in detail by Brereton J in Director General of the Department of Community Services; Re Thomas [2009] NSWSC 217. His Honour found that the Crown's parens patriae jurisdiction that is exercised by this Court and preserved by s 247 of the Children and Young Persons (Care and Protection) Act 1998 extends to making such secure accommodation orders, which are essentially protective in nature, where they are required for the protection and welfare of the child or young person. His Honour observed that great caution is required in the exercise of the jurisdiction. It is necessary for the Minister to obtain orders from the Court to authorise a secure accommodation order. The power to detain a young person against her will and physically to restrain her from leaving secure premises would not be an ordinary incident of the Minister's parental responsibility.

1. In Re Thomas, as in this case, a young person was at serious risk of harm to himself or herself and the restriction of his or her liberty was justified for his or her own protection. In this case, as in Re Thomas, there were no practical alternatives for the young person's care and accommodation that would secure him or her from the risk of harm.

1. The present application is brought by a husband and wife who had been the authorised carers of Bella from 31 March 2010 until 27 November 2012. The applicants have joint parental responsibility with the Minister for Bella's older sister. The placement of Bella with the applicants broke down by November 2012 as a result of Bella's behaviour and numerous episodes of her absconding. Subsequent placements of Bella with non-governmental organisations which provide care for young persons were also unsuccessful. It was this that led to the need to make the orders of 26 February 2013.

1. The present application by the former foster parents is that they be joined as parties to these proceedings. When the proceedings were brought the Director-General joined Bella's natural parents as defendants, although they have not had parental responsibility for her since she was very young.

1. I made an order that Bella be separately represented and that the Crown Solicitor request the Legal Aid Commission to arrange such representation. That has been done and Bella has been represented by a solicitor from the Legal Aid Commission on the hearing of this application and, indeed, on previous applications when the matter has been before the Court on the review of the secure accommodation orders.

1. The application that Bella's former carers be joined as parties is opposed by Bella's natural parents and by the Director General and the Minister. It is also not supported at this stage by Bella who submits through her solicitor that whilst she wishes to retain some form of relationship with the applicants and considers them as being potential long-term carers, their joinder at present is premature.

1. The application for joinder is brought pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005. Rule 6.24(1) provides:

"6.24 Court may join party if joinder proper or necessary

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party."

1. There is no matter that can truly be said to be a matter in dispute in these proceedings. These proceedings are not adversarial. In deciding whether the applicant's joinder is necessary regard must be had to the nature of the jurisdiction being exercised. The parens patriae jurisdiction is to be exercised for the benefit and welfare of the young person.

1. There is no doubt that the question whether or not the secure accommodation orders should be continued, amended or discharged can be determined whether or not the applicants are joined as parties to the proceedings. However, as that determination has to be made with a view only to Bella's welfare, it seems to me that if it appears that the applicants are likely to be able to provide evidence or submissions that would permit a better, because more informed, determination of those matters, then their joinder is necessary within the meaning of the rule.

1. The width of the parens patriae jurisdiction and its ability to be invoked by persons in the position of the applicants is demonstrated by the recent decision of McDougall J in Re June [2013] NSWSC 969 where, on the application of foster carers who were not parties to proceedings in the Children's Court, his Honour quashed orders of that Court notwithstanding that neither the child through her independent legal representative, nor the Minister, had brought proceedings for prerogative relief.

1. In the course of her thorough submissions, Ms Barnett, counsel for the applicants, referred to the decision of Austin J in Director General of New South Wales Department of Community Services v Y [1999] NSWSC 644 where his Honour allowed the child the subject of those proceedings to appear by a separate representative on an application that invoked the Court's inherent jurisdiction by analogy to the statutory provisions governing the representation of children in proceedings under the Children (Care and Protection) Act 1987 and the Family Law Act 1975 (Cth).

1. Ms Barnett noted that applying the analogy of the Children and Young Persons (Care and Protection) Act, the applicants are persons who could be joined as parties to the proceedings pursuant to s 98(3) of that Act if these were proceedings in the Children's Court, they being persons whom the Court should consider have genuine concern for Bella's safety, welfare and well-being.

1. The applicants contend that it is in Bella's best interests and will promote her welfare if they are joined as parties for a number of reasons. First, Ms Barnett submitted that from time to time as the secure accommodation orders need to be reviewed, the Court will have to consider whether there are practical alternatives to the current regime for the care and accommodation of Bella where it could properly be assessed that she would not be at serious risk of self-harm or of being of harm to others.

1. The position of the first applicant is that when Bella's behaviour has stabilised the applicants would like to have her living back with them and with her sister. They would be well placed to provide information to the Court as to whether such an arrangement would be realistic. Moreover, the applicants submit that having had over two and a half years of experience in caring for Bella and having experienced her difficult behaviours and her responses to their attempts to deal with those behaviours, they are well placed to make submissions to the Court as to the appropriateness of the type of care being provided to Bella in her present circumstances.

1. Moreover, because of their care for Bella's sister, the applicants say they are in the best position to provide information to the Court and to the Director General or the Minister about similarities and differences between the sisters and of the positive steps that have worked for Bella's sister in the past. I think there is force in these contentions.

1. In the exercise of the parens patriae jurisdiction it must be borne in mind that it is the Minister who has the parental responsibility for Bella.

1. In reviewing the continued operation of the secure accommodation orders the Court does not attempt to assume the parental responsibility that the Minister has. That having been said, it is also true that the Court has to be satisfied that the continuation of the secure accommodation orders that amount to a deprivation of liberty remain in Bella's best interests. The Court must keep under review whether there is a realistic alternative from time to time to the secure accommodation order.

1. In my view, the applicants should be in a position to provide such assistance and it is likely to be in Bella's best interests for them to be joined as parties. Given their comparatively recent history of having acted as Bella's carers, I think it likely that they will be at least as well placed and possibly better placed to provide such assistance to the Court as Bella's natural parents who have been joined as defendants.

1. The first defendant who appeared for herself and the second defendant on the application, Bella's mother, opposed the application. Many of her submissions were based upon assertions about which there was no evidence before me, which revealed a hostility to the applicants. There was also other evidence of hostility between Bella's natural parents and the applicants.

1. This is one reason why the Director General opposes the application. The Director General points to the potential for ongoing conflict between the natural parents and the applicants and says that this would be likely to divert attention and resources away from the therapeutic work being done with Bella.

1. The natural parents do not support Bella's placement with the applicants and the applicants have expressed ongoing concerns, to put it neutrally, about the natural parents. I think this is a matter of concern, but it is one which should be capable of being managed.

1. The proceedings are not adversarial proceedings. There will be no direct issue requiring the Court to adjudicate on the allegations of the natural parents against the applicants and vice versa. The natural parents, it appears to me, are only entitled to be parties to the proceedings to the extent that they also can provide assistance to the Court in the assessment of what is in Bella's best interests.

1. If it appears that either the applicants or the natural parents are not providing such assistance or are causing disruption or for any other reason their continued joinder as parties is not in Bella's interests, then they will be removed as parties. However, there is nothing in the affidavits of the first applicant that have been read or in the submissions that have been made for the applicants that indicates that their joinder would be likely to produce only conflict and not benefit for Bella. To the contrary, the submissions made for the applicants and the affidavits of the first applicant are well considered and measured, and I would expect to be provided with continued assistance.

1. Another ground on which the Director General opposes the joinder of the applicants is what was described as the applicant's lack of constructive engagement with the Department of Family and Community Services in working together in Bella's best interests. There have been moments of tension between the applicants and the Department. Some of the reasons for that are in dispute and some of the reasons for the tension are understandable, particularly tension arising from a home visit in the early hours of the morning.

1. I do not think that any absence of constructive engagement, to the extent that was due to the conduct of the applicants, is a reason for refusing this application. Indeed, I think their joinder should be productive of future constructive engagement.

1. The Director General also opposes the joinder on the grounds that he has concerns about the care provided by the applicants to Bella, in particular, the behaviour and attitude of the second applicant towards Bella. As I have said, the issues should not require a judgment to be made about the adequacy of the previous care provided by the applicants to Bella. The Minister will retain the obligations attendant on having parental responsibility for Bella including making decisions about her future placements.

1. In all of these circumstances, I think it is in Bella's interests that the applicants be joined as parties, but the purpose of doing so will only be achieved if at least some information in relation to Bella's progress is provided to the other parties. On previous occasions, Bella, through her solicitor, and the Director-General, have opposed the provision to the first and second defendants, that is the natural parents, of such information. Some things should, no doubt, be kept confidential if that is the view of the Minister who has parental responsibility for Bella and/or Bella herself. For example, confidential doctor's reports, reports from counsellors, psychologists and the like should prima facie be kept confidential, even from the defendants.

1. However, there will be a question as to what other documents should be provided to the applicants and the defendants. The Court, in cases such as this, is regularly provided with reports from persons having responsibility for Bella in her secure accommodation as to her progress both behaviourally and in terms of her education and health, including details of any particular incidents and how they have been dealt with.

1. I will have to hear the parties further on the question of what information should be provided to the applicants and the defendants concerning Bella so that the purpose of the joinder of the applicants can be given effect to.

1. For these reasons, I make order 1 in the amended notice of motion. Order 2 is not pressed at least at this stage. I order that the amended notice of motion be otherwise dismissed.