Re Beth

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT GEELONG

COMMON LAW DIVISION

S CI 2012 06398

IN THE MATTER of an application in relation to ss 172 and 173 of the Children, Youth and Families Act 2005 and in the parens patriae jurisdiction of the Supreme Court of Victoria
Application by the Secretary to the Department of Human Services	Applicant

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JUDGE:	OSBORN JA
WHERE HELD:	Geelong
DATE OF HEARING:	7, 8 and 12 March 2013
DATE OF JUDGMENT:	23 April 2013
CASE MAY BE CITED AS:	Re Beth
MEDIUM NEUTRAL CITATION:	[2013] VSC 189	1^st Revision: 15 May 2013, paras [81] and [156]

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Courts and judicial system – parens patriae jurisdiction – best interests of the child – where the child exhibits self-destructive behaviours when not in secure facilities – application for orders enabling child to be placed in a locked-down facility and restricted – where statutory powers under the Children, Youth and Families Act 2005 ch 4 and Disability Act 2006 pts 7 and 8 are not adequate – whether parens patriae jurisdiction supplementary to or excluded by relevant statutory powers under the Children, Youth and Families Act 2005 or Disability Act 2006 – whether inconsistency between ss 140 and 149 or 150A of the Disability Act 2006 and powers under the Children, Youth and Families Act 2005 to detain children, including under ss 172 and 173 - independent representation – voice of the child – interference with human rights – Charter of Human Rights and Responsibilities Act 2006 ss 7(2), 10(c), 12, 13(a), 21, 32, 38 – conditions upon the primary orders sought – least restrictive means necessary to be used – reporting requirements – statutory requirements for plans – provision for timely review of the orders of the Court – liberty to apply.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms D Mortimer SC with Ms J Davidson	Ms K Miller, Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission	Ms G Dewey, solicitor	Ms S Cauchi, Victorian Equal Opportunity and Human Rights Commission
For the Public Advocate	Ms P Carey, solicitor	Mr P Grano, Office of the Public Advocate
For Victoria Legal Aid	Ms D Harris	Ms L Akenson, Victoria Legal Aid

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The Secretary as guardian and the operation of the Children, Youth and Families Act 2005 6

The Disability Act............................................................................................................................ 15

Part 7 of the Disability Act.............................................................................................................. 28

The parens patriae jurisdiction...................................................................................................... 33

The facts............................................................................................................................................. 39

The view............................................................................................................................................. 59

Conclusions on the facts................................................................................................................. 61

The premises underlying the order sought................................................................................. 62

Independent representation........................................................................................................... 63

The Charter........................................................................................................................................ 67

Conclusion......................................................................................................................................... 69

HIS HONOUR:

Introduction

Beth[1] is a 16 year old girl who was removed from the care of her parents by Queensland authorities when she was a small infant. The applicant (‘the Secretary’) has been her guardian since she was four years old. Beth’s subsequent history has presented special difficulties and severely tested the capacity of the Secretary to provide adequately for her care.
[1]A pseudonym.

Beth suffers from intellectual disabilities and comes from a dysfunctional family background. She has suffered significant sexual abuse and violence in the course of her short life. She has in turn exhibited significant self-destructive behaviours and engaged in violence towards others.

The Secretary has the guardianship and custody of Beth pursuant to a protection order made under the Children, Youth and Families Act 2005 (‘the CYF Act’).

As Beth’s guardian, the Secretary has all the rights, powers, duties and obligations of a natural parent.[2]
[2]CYF Act s 172(1)(b).

Custody and guardianship for this purpose encompass the right and responsibility for the daily care and control of Beth together with the right to make, and responsibility for, decisions about her long-term welfare.[3]
[3]CYF Act ss 4 and 5.

The accommodation options for Beth which are available pursuant to the CYF Act and the Disability Act 2006 (‘the Disability Act’) have proved materially inadequate or inappropriate for a variety of reasons.

On 27 November 2012 Cavanough J made interlocutory orders enabling Beth to be placed in a purpose-renovated house that provides a secure and lockable environment until further order of the Court.

The Secretary now seeks an order from the Court in the following terms:

OTHER MATTERS:
1.The Victorian Equal Opportunity and Human Rights Commission intervened in these proceedings pursuant to section 40 of the Charter of Human Rights and Responsibilities Act 2006.

2. The Court notes that it is common ground that:
1.Part 7 of the Disability Act 2006 (‘the Disability Act’) applies to [the nominated agency] as a ‘disability service provider’ as defined in section 3 of the Disability Act, and applies to Beth because she satisfies the criteria in section 133 of the Disability Act.[4]
[4]The applicant accepted that this paragraph might require revision.
2.The supervision of community visitors under Division 6 of Part 3 of the Disability Act applies to [the nominated agency] in its care of Beth.
3.The Child Safety Commissioner[5] is empowered to monitor the conditions under which Beth is residing and being cared for, pursuant to Division 3 of Part 6 of the Child Wellbeing and Safety Act 2005.
[5]As the position was previously known.
4.The Public Advocate is empowered to inspect the premises at which Beth is being cared for, see Beth and make inquiries relating to her care, detention and treatment or control pursuant to section 18A of the Guardianship and Administration Act 1986.

THE COURT ORDERS THAT:
1.Until the making of orders pursuant to the review referred to in paragraph 4 or further order, and notwithstanding the provisions of Part 8 of the Disability Act and the provisions of section 173(2)(b) of the Children, Youth and Families Act 2005, the Secretary and those acting under her direction are authorised to place Beth in the residential facility described in the affidavit of Robyn Miller dated 22 November 2012 (being premises operated and staffed by [the nominated agency]) and to use, and direct staff at [the nominated agency] to use, whatever means may be reasonably necessary for that purpose, including lock up facilities, provided always that the staff at [the nominated agency] seek to use the least restrictive means necessary.
2.Until further order, the Secretary and those acting under her direction and the staff at [the premises of the nominated agency] are authorised to use restrictive interventions (as that expression is defined in section 3 of the Disability Act) on Beth and, as far as is necessary, to use reasonable force in doing so, provided always that they seek to use the least restrictive means necessary.
3.No later than 6 months after the date of this order, the Secretary shall file and serve on the intervenor and amici curiae[6] a report from the Senior Practitioner, Specialist Services, Disability Services, Department of Human Services, or a person in a similar position, as to whether the orders in paragraphs 1 and 2 hereof continue to be required, together with any modifications which should be made to the orders to reduce the level of restrictions imposed on Beth. Such report is to:
[6]The Public Advocate and Legal Aid Victoria appear as amici curiae.
a. address in detail:
i.why the orders (with any modifications) continue to be required in Beth's best interests, if that is the opinion she forms;
ii.the progress that Beth has made as against the statutory plans referred to in paragraph 3(b); and

iii. a summary of Beth's views on the placement;

b. attach the operative versions of:
i.the Behaviour Support Plan, which will comprise the Care and Case Plan which is currently Exhibit LS-1 to the affidavit of Linda Saffron affirmed on 26 November 2012 and the Care and Support Plan which is currently Exhibit 1 tendered at the hearing before Justice Cavanough on 27 November 2012; and
ii.the Statutory Case Plan under s 167 of the Children, Youth and Families Act 2005 including Stability Plan under s 170 of the Children, Youth and Families Act 2005, which is currently Exhibit B tendered at the hearing before Osborn J on 7 March 2013;

c.attach a report by the Senior Practitioner on the use of restrictive interventions since the hearing; and
d.attach reports from Beth's treating general practitioner and psychiatrist identifying what medications have been prescribed for Beth and why those medications have been prescribed.

4.The orders in paragraphs 1 and 2 hereof are to be the subject of a review by the Court on fresh evidence in 12 months from the date of these orders.
5.The Secretary, any intervenors and the amici curiae have liberty to apply on two days’ notice, such notice to specify any orders sought.

It can be seen that this order involves a substantial restriction upon Beth’s liberty and will subject her to a form of ongoing managed detention.

The order is sought in the parens patriae jurisdiction of the Supreme Court on the basis that it is in Beth’s best interests and necessary for her ongoing care and protection.

Conversely it is submitted that the remedies and procedures available to the Secretary under the CYF Act and the Disability Act are inadequate. It is submitted that, in the exceptional circumstances of this case, the Court should supplement the statutory schemes which are available for Beth’s care and make the particular orders which are sought.

Upon the hearing of the application the Court was assisted by the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) as intervenor and the Public Advocate and Victoria Legal Aid (‘Legal Aid’) who appeared as amici curiae.

None of the parties who appeared opposed the core orders sought by the Secretary, but each emphasised the need for adequate independent monitoring and review of the appropriateness of the orders and made submissions as to appropriate conditions intended to achieve this outcome.

For the reasons I shall explain I have ultimately concluded that, despite their radical nature, orders substantially in the form advanced by the Secretary are appropriate in the present case. At heart this is because I accept that they are in Beth’s best interests and are necessary for her ongoing care and protection.

In order to explain why, it is necessary first to deal with the legal framework within which Beth’s case must be assessed, secondly to elaborate the factual basis on which the orders are sought and thirdly to address the detail of the proposed orders.

The Secretary as guardian and the operation of the Children, Youth and Families Act 2005

The second main purpose of the CYF Act is to provide for the protection of children.[7] A principal mechanism utilised to achieve this purpose under the Act is the making of protection orders including guardianship and custody orders to the Secretary. In turn the CYF Act grants the Secretary a variety of specific powers relating to children in need of protection, including powers with respect to the making of plans for the care and protection of children and powers to place children in need of protection in a variety of types of accommodation.
[7]CYF Act s 1(b).

Section 4 of the CYF Act provides for guardianship of a child:

A person (including the Secretary) who has, or under this Act is granted, guardianship of a child, has responsibility for the long-term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than—
(a) the right to have the daily care and control of the child; and
(b)the right and responsibility to make decisions concerning the daily care and control of the child.

Section 5 provides for custody:

A person (including the Secretary) who has, or under this Act is granted, custody of a child has—
(a)the right to have the daily care and control of the child; and
(b)the right and responsibility to make decisions concerning the daily care and control of the child.

Section 8 requires decision makers acting under the CYF Act to have regard to the principles in pt 1.2 of that Act.

Section 10(1) sets out the fundamental criterion of the best interests of the child:

For the purposes of this Act the best interests of the child must always be paramount.

Section 10(2) provides that in determining whether a decision or action is in the best interests of the child the need to protect the child from harm and to protect his or her rights and to promote his or her development must always be considered.

It can be seen that in some cases such as the present the need to protect a child from harm or to provide for his or her development may potentially conflict with the need to protect his or her rights.

Section 10(3) provides for a series of individual considerations that may bear upon the best interests of the child. They relevantly include the following:

(d)the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e)the effects of cumulative patterns of harm on a child's safety and development;
(f)the desirability of continuity and stability in the child's care;
…
(l)the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;
…
(n)the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;
(o)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(p)the possible harmful effect of delay in making the decision or taking the action;
…
(r)any other relevant consideration.

Section 11 provides for decision making principles which relate to appropriate decision making and implementation processes. They include:

(b)where a child is placed in out of home care, the child's care giver should be consulted as part of the decision-making process and given an opportunity to contribute to the process;
(c)the decision-making process should be fair and transparent;
(d)the views of all persons who are directly involved in the decision should be taken into account;
(e)decisions are to be reached by collaboration and consensus, wherever practicable;
(f)the child and all relevant family members (except if their participation would be detrimental to the safety or wellbeing of the child) should be encouraged and given adequate opportunity to participate fully in the decision-making process;
(g)the decision-making process should be conducted in such a way that the persons involved are able to participate in and understand the process, including any meetings that are held and decisions that are made; …

Section 16(1) imposes specific responsibilities on the Secretary. They include the following:

Without limiting any other responsibility of the Secretary under this Act, the Secretary has the following responsibilities—
(a)to promote the prevention of child abuse and neglect;
(b)to assist children who have suffered abuse and neglect and to provide services to their families to prevent further abuse and neglect from occurring; …

Chapter 4 of the CYF Act relates to children in need of protection. Beth is a child who has been assessed by the Children’s Court of Victoria as being in need of protection, and as a consequence the provisions of ch 4 apply to her.[8] The concept of a child in need of protection is elaborated in s 162 of the CYF Act. The evidence as a whole establishes that Beth has been and continues to be a child in need of protection at least in the following senses:
[8]Pursuant to CYF Act ss 274 and 275.

(1)For the purposes of this Act a child is in need of protection if any of the following grounds exist—
…
(c)the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(d)the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
(e)the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type; …

Part 4.9 of the CYF Act provides for protection orders. A court may make an order under this part in respect of a child if the court finds that the child is in need of protection[9] or in some circumstances where there are substantial and irreconcilable differences between the child and the person who has custody of the child.[10]
[9]CYF Act s 274(a).
[10]CYF Act s 274(b).

Protection orders in the relevant sense are defined to include a custody to Secretary order and a guardianship to Secretary order.[11] Such orders may continue to be in force until a child attains 18 years of age.[12] Likewise, pursuant to s 3 a child is relevantly a person who is under 17 years or, if a protection order continues in force in respect of him or her, a person who is under the age of 18 years.
[11]CYF Act s 275(1).
[12]CYF Act s 275(2).

Section 287 relevantly provides that a custody to Secretary order grants sole custody of the child to the Secretary and remains in force for the period, not exceeding 12 months, specified in the order.[13]
[13]Custody is defined by s 5 of the CYF Act:
A person (including the Secretary) who has, or under this Act is granted, custody of a child has—
(a)the right to have the daily care and control of the child; and
(b)the right and responsibility to make decisions concerning the daily care and control of the child.

Section 289 provides that a guardianship to Secretary order grants custody and guardianship of the child to the Secretary to the exclusion of all other persons and remains in force for the period, not exceeding two years, specified in the order.[14] Beth is subject to such an order. Section 172 of the CYF Act states the general powers of the Secretary as a guardian and custodian. They include the following:
[14]Guardianship is defined by s 4 of the CYF Act, quoted above.

(1)The Secretary, in relation to a child who is under his or her guardianship—
(a)is the guardian of the person and estate of the child to the exclusion of all other persons; and
(b)has the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have.

(2)The Secretary, in relation to a child who is in the custody or under the guardianship of the Secretary—
(a)has the sole right to the custody of the child; and
(b)may demand, sue for and recover any money due to the child; and
(c)in the name and on behalf of the child may commence and prosecute any proceeding relating to any property or rights of the child.

(3)The Secretary may detain without warrant any child who is in the custody or under the guardianship of the Secretary.

The Secretary concedes that s 172 must be read in the context of the further provisions of the CYF Act. In particular, s 172(3) would not warrant the long-term placement of a child in circumstances other than those envisaged by s 173. This construction is necessary to give meaningful effect to s 173 and is further supported by s 32 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) in conjunction with the liberty right recognised by s 21.

Section 173 provides for the placement of children who (among other categories) are under the guardianship of the Secretary under the CYF Act. By s 173(2) the Secretary may deal with a child in any one of the following ways:

(a)place him or her in an out of home care service;
(b)place him or her in a secure welfare service for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days) if the Secretary is satisfied that there is a substantial and immediate risk of harm to the child;
(c)place him or her for adoption under the Adoption Act 1984 if he or she is under the guardianship of the Secretary and available for adoption;
(d)place him or her in any other suitable situation as circumstances require.

Again, the Secretary properly concedes that s 173(2)(d) would not empower the Secretary to place a child in a secure welfare service other than in accordance with s 173(2)(b). This conclusion is necessary to give meaningful effect to s 173(2)(b) and is further supported by s 32 of the Charter in conjunction with the liberty right recognised by s 21.

In turn, s 174 imposes the following duties on the Secretary in placing a child.

(1)In dealing with a child under section 173, the Secretary—
(a)must have regard to the best interests of the child as the first and paramount consideration; and
(b)must make provision for the physical, intellectual, emotional and spiritual development of the child in the same way as a good parent would; and
(c)must have regard to the fact that the child's lack of adequate accommodation is not by itself a sufficient reason for placing the child in a secure welfare service; and
(d)must have regard to the treatment needs of the child.

(2)In placing a child under section 173(2)(d), the Secretary must have regard to the prescribed criteria (if any).

The nominated agency is an ‘out of home care service’ as defined by s 3 of the CYF Act and so falls within s 173(2)(a). The register maintained under s 54 of the CYF Act records the nominated agency as a ‘Community-based Child and Family Service and Out of Home Care Service’.

In turn however a ‘secure welfare service’ (‘SWS’) is defined under the CYF Act to mean a community service that has lock-up facilities.[15] A ‘community service’ means a community service established under s 44 of the CYF Act or a body registered under s 46. The nominated agency is also a body registered under s 46 of the CYF Act.[16]
[15]CYF Act s 3.
[16]The CYF Act provides for a regime for the registration of community services (CYF Act pt 3.3 div 3) and the application of performance standards and responsibilities of those services (CYF Act pt 3.3 div 4), and a detailed scheme for the registration and supervision of out of home carers (CYF Act pt 3.4).

In the present case, the Secretary is satisfied that there is a substantial and immediate risk of harm to Beth (the precondition stipulated in s 173(2)(b)) but previous placements of Beth in a SWS have been unsuccessful.

The affidavit of Argiri Alisandratos[17] explains that there are approximately 6,000 children in Victoria who are in out of home care. The Secretary has responsibility for 4,500 children of these 6,000 children pursuant to either a guardianship, custody or other interim care order. Of those 4,500 children, approximately 2,500 are in kinship arrangements under the care of a family member. A further 1,400 children are in foster care. A further 550 children are in residential care. Most of the children in residential care are adolescents, although some younger children are placed in residential care at times due to their special needs.
[17]Assistant Director, Placement and Support Services, Department of Human Services since March 2009.

Kinship care and foster care are classed as home-based care services, as they involve care delivered by volunteers or family members in their homes. Kinship care is the preferred placement model for children as it enables connections to be maintained with their family and cultural background. If kinship care is not possible the Department of Human Services (‘DHS’) considers whether the child can be placed in foster care.

Residential care involves facility based services. Children and young people are placed in residential care if they have complex needs or present with behaviours that mean they are not able to be supported effectively in kinship or foster care. Children may transfer to residential care as a result of failure in other forms of care.

There are two types of residential care. The most common form of residential care is community residential care. The other form of residential care is that provided in SWS.

Community residential care facilities are delivered by funded community service organisations such as Anglicare and MacKillop Family Services. They are based in the community and are managed by a rostered team of staff. Most facilities can accommodate four children, although some accommodate only two children at a time and others can accommodate up to five or six. Mr Alisandratos states:

12Those who are placed in community residential care are usually severely traumatised and damaged from earlier experiences, such as abuse. Managing the day-to-day and longer term care needs of young people in community residential care can be challenging. The staff in community residential care manage the young person's needs by building relationships and engaging with them and working with their care teams. A young person's care team is typically made up of a care worker, case manager and any other support staff.
…
19It is quite common for those in community residential care to abscond. Community residential care facilities are not locked facilities. Like any home, community residential care facilities can be locked to prevent people entering them. However, there is nothing to stop a person leaving the facility. Accordingly, the only means available to staff to prevent a young person from absconding are the relationships they have formed with that young person.
20When a young person threatens to abscond from a community residential care facility, staff will intervene to dissuade them from doing so. However, since community residential care facilities are not locked facilities, there is ultimately nothing to stop a young person walking out the door. When a young person does so, a staff member will, if feasible, follow the young person and encourage them to return to the facility. The staff rely upon the relationship they have built with the young person to encourage them to return. However, if a young person has made up their mind to leave the facility, it is usually difficult to change that.[18]

[18]Affidavit of Argiri Alisandratos sworn 22 November 2012.

He further says with respect to SWS:

21SWS were designed to respond to the most at-risk children in the State. SWS respond to children who are at immediate and significant risk of harming themselves, such as children who are self harming, throwing themselves at cars or train lines. A child is placed in SWS when, despite attempts to engage, contain and mitigate the risk the child poses to themselves, that risk cannot be managed in community residential care.
22A child is placed in SWS for the shortest feasible period to contain the child and then re-engage them in community residential care. The purpose of SWS is two-fold. The first purpose is to contain the child so that they are no longer at immediate or significant risk to themselves. The second is to undertake some restorative work and relevant health and therapeutic assessments to assist the young person to reengage and effectively transition back to their community residential care unit.
23By containing the child and addressing the immediate risk to their safety, SWS provide staff with the capacity to deal with the child's health and therapeutic issues, which are usually the underlying causes for their risky behaviour, and rebuild relationships with the child. Community based interventions are brought within the contained environment of SWS so the child can re-engage with those interventions.
…
25SWS are larger facilities than community based care facilities. There are only two SWS facilities in Victoria, one for boys and one for girls. They accommodate up to 10 young people at a time. The facilities are locked down. The external perimeter of an SWS facility is surrounded by high fences. All of the external doors to the facility are locked and can only be opened with a key. Only staff have access to the keys and may open the doors. Within the facility, certain parts of the facility can be locked down. There is a containment (or time out) room in each facility.[19]

[19]Ibid.

The house in which Beth currently lives has been renovated to include lock-up facilities. Thus although it is not a gazetted SWS facility it falls within the terms of s 173(2)(b) and any placement within it would have a time limit of 42 days at most.

As counsel for the Public Advocate stressed, the time limit within s 173(2)(b) is deliberate. The second reading speech to the Children and Young Persons (Amendment) Bill 1990 relating to the precursor to the provision stated the following:

The provision is consistent with the intent of the principal Act where placement in a secure welfare service is restricted unless there is substantial and immediate risk of harm to the child. Experience has demonstrated that there are very few young people who are required to be placed in a secure setting for such reasons for 21 days.[20]

[20]Victoria, Parliamentary Debates, Legislative Assembly, 6 September 1990, 514 (Kay Patricia Setches).

On the other hand in exceptional cases, the time limit provided for in s 173(2)(b) potentially threatens the stability of care which can be granted to individuals who are particularly vulnerable. In the Secretary’s view Beth’s case falls within this category and hence it is sought to place her in a secure facility for longer than s 173(2)(b) would otherwise permit.

Lastly, before leaving the CYF Act it should be noted div 1 of pt 4.3 of the CYF Act provides for case planning and stability planning in respect of children in Beth’s situation. A case plan includes any relevant stability plan[21] and must be prepared in a series of circumstances which include a period within six weeks after the making of a guardianship to Secretary order.[22]
[21]CYF Act s 166(3).
[22]CYF Act s 167(1).

A case plan must contain all the decisions made by the Secretary concerning a child that:

(a) the Secretary considers to be significant decisions; and

(b) relate to the present and future care and wellbeing of the child, including the placement of, and access to the child.[23]

[23]CYF Act s 166(2).

A stability plan must plan for stable, long term out of home care for the child.[24]
[24]Section 169(3) of the CYF Act lists matters which it may include.

A stability plan must be prepared for each child who is in out of home care as a result of a protection order.[25]

The Disability Act

[25]CYF Act s 170(1).

Beth has also been assessed as having an intellectual disability within the meaning of s 3 of the Disability Act.[26]
[26]Section 3 of the Disability Act defines ‘intellectual disability’ as follows:
intellectual disability, in relation to a person over the age of 5 years, means the concurrent existence of—
(a)significant sub-average general intellectual functioning; and
(b)significant deficits in adaptive behaviour—
each of which became manifest before the age of 18 years;

In consequence she is subject to the provisions of the Disability Act which has the following purpose:

The purpose of this Act is to enact a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities and which is based on the recognition that this requires support across the government sector and within the community.[27]

[27]Disability Act s 1.

The objectives of the Disability Act are further stated to be to:

(a)advance the inclusion and participation in the community of persons with a disability;
(b)promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability;
(c)facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability;
(d)promote and protect the rights of persons accessing disability services;
(e)support the provision of high quality disability services;
(f)make disability service providers accountable to persons accessing those disability services;
(g)ensure the efficient and effective use of public funds in the provision of disability services.[28]

[28]Disability Act s 4.

Section 5 states the following principles:

(1)Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.
(2)Persons with a disability have the same right as other members of the community to—
(a)respect for their human worth and dignity as individuals;
(b)live free from abuse, neglect or exploitation;
(c)realise their individual capacity for physical, social, emotional and intellectual development;
(d)exercise control over their own lives;
(e)participate actively in the decisions that affect their lives and have information and be supported where necessary, to enable this to occur;
(f)access information and communicate in a manner appropriate to their communication and cultural needs;
(g)services which support their quality of life.

(3) Disability services should—
(a)advance the inclusion and participation in the community of persons with a disability with the aim of achieving their individual aspirations;
(b)be flexible and responsive to the individual needs of persons with a disability;
(c)maximise the choice and independence of persons with a disability;
(d)be designed and provided in a manner that recognises different models of practice may be required to assist people with different types of disability and at different stages in their lives to realise their physical, social, emotional and intellectual capacities;
(e)enable persons with a disability to access services as part of their local community and foster collaboration, coordination and integration with other local services;
(f)as far as possible be provided in a manner so that a person with a disability need not move out of his or her local community to access the disability services required;
(g)be of high quality and provided by appropriately skilled and experienced staff who have opportunities for on-going learning and development;
(h)consider and respect the role of families, carers and other persons who are significant in the life of the person with a disability;
(i)acknowledge the important role families and carers have in supporting persons with a disability;
(j)acknowledge the important role families have in assisting their family member to realise their individual physical, social, emotional and intellectual capacities;
(ja)acknowledge the important role carers have in assisting the people they care for to realise their individual physical, social, emotional and intellectual capacities;
(k)where possible strengthen and build capacity of families and carers who are supporting persons with a disability;
(l)have regard for the needs of children with a disability and preserve and promote relationships between the child, their family and other persons (including carers) who are significant in the life of the child with a disability;
(m)be provided in a manner that respects the privacy and dignity of persons accessing the disability services;
(n)be provided in a way which reasonably balances safety with the right of persons with a disability to choose to participate in activities involving a degree of risk;
(o)have regard for any potential increased disadvantage which may be experienced by persons with a disability as a result of their gender, language, cultural or indigenous background or location;
(p)be designed and administered in a manner so as to ensure that persons with a disability have access to advocacy support where necessary to enable adequate decision making about the services they receive;
(q)be designed and provided in a manner which continues to reflect the role of the Secretary in providing and funding planning for persons with a disability;
(r)be accountable for the quality of those services and for the extent to which the rights of persons with a disability are promoted and protected in the provision of those services.

(4)If a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.
(5)It is the intention of Parliament that the principles specified in this section should wherever possible be given effect to in the administration of this Act and the provision of disability services.[29]

[29]Emphasis added.

Section 6(1) of the Disability Act states the following principles with respect to persons with an intellectual disability:

The following principles apply specifically in respect of persons with an intellectual disability—
(a)persons with an intellectual disability have a capacity for physical, social, emotional and intellectual development;
(b)persons with an intellectual disability have the right to opportunities to develop and maintain skills and to participate in activities that enable them to achieve valued roles in the community;
(c)services for persons with an intellectual disability should be designed and provided in a manner which maximises opportunities for persons living in residential institutions to live in community based accommodation;
(d)persons with an intellectual disability living in a residential institution have the right to a high quality of care and development opportunities whilst they continue to reside in the institution;

(e)services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities;
(f)services for persons with an intellectual disability should be designed and provided in a manner that ensures that a particular disability service provider cannot exercise control over all or most aspects of the life of a person with an intellectual disability.[30]

[30]Emphasis added.

Section 6(3)-(5) governs the use of standardised measurements in the assessment of intellectual disability.

Section 6(6)-(8) identifies some of the principal provisions of the Act relating to persons with an intellectual disability:

(6)Section 55 provides for planning for persons with an intellectual disability.
(7)Sections 86 to 88 provide for residential services for persons with an intellectual disability who require admission to a residential institution.
(8)Part 8 provides for persons with an intellectual disability who require compulsory treatment.

Both the Secretary and the nominated agency are disability service providers as that term is defined by s 3 of the Disability Act.[31]
[31]Section 3 of the Disability Act defines ‘disability service provider’ as follows:
disability service provider means—
(a)the Secretary; or
(b)a person or body registered on the register of disability service providers;

The Disability Act also establishes an administrative structure which includes the establishment of the office of the Senior Practitioner (who is referred to in the proposed order sought from the Court). Section 23 provides:

(1)Subject to the Public Administration Act 2004, there is to be appointed by the Secretary as the Senior Practitioner a person who in the opinion of the Secretary has the appropriate clinical qualifications and experience to perform the functions and exercise the powers conferred on the Senior Practitioner by or under this Act.
(2)Subject to the general direction and control of the Secretary, the Senior Practitioner—
(a)is generally responsible for ensuring that the rights of persons who are subject to restrictive interventions and compulsory treatment are protected and that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with;
(b)has the powers, duties, functions and immunities that are conferred or imposed on the Senior Practitioner by or under this or any other Act.

One of the functions of the Senior Practitioner pursuant to s 24 is:

(h)to evaluate and monitor the use of restrictive interventions across disability services and to recommend improvements in practice to the Minister and the Secretary; …

Section 27 gives the Senior Practitioner special powers to investigate and monitor the use of restrictive interventions and compulsory treatment. They include the right to visit and inspect any part of the premises where disability services are being provided.[32]
[32]Disability Act s 27(2)(a).

Provision is also made for the role of community visitors[33] who may be appointed on the recommendation of the Public Advocate[34] and whose role is subject to ongoing supervision by the Public Advocate.[35]
[33]Disability Act pt 3 div 6.
[34]Disability Act s 28(1).
[35]Disability Act ss 29(2) and 32.

The function of a community visitor expressly includes visiting any premises where a disability service provider is providing residential services and inquiring into the use of restrictive interventions and compulsory treatment.[36]
[36]Disability Act s 30(f).

Parts 7 and 8 of the Disability Act govern the control of the use of restrictive interventions (including seclusion) upon persons with a disability.

Restrictive interventions are defined as follows:

restrictive intervention means any intervention that is used to restrict the rights or freedom of movement of a person with a disability including—
(a)       chemical restraint;
(b)       mechanical restraint;
(c)       seclusion; …[37]

[37]Disability Act s 3.

Seclusion is further defined:

seclusion means the sole confinement of a person with a disability at any hour of the day or night—
(a)in any room in the premises where disability services are being provided of which the doors and windows cannot be opened by the person from the inside; or
(b)in any room in the premises where disability services are being provided of which the doors and windows are locked from the outside; or
(c)to a part of any premises in which disability services are being provided; …[38]

[38]Disability Act s 3.

The Secretary concedes that use of the calm down room within the house in which Beth is accommodated would constitute seclusion as defined.

Section 133(1) provides that pt 7 of the Disability Act applies to a person with a disability other than persons for whom a treatment plan is in force or is required to be prepared under pt 8.

Part 8 provides for compulsory treatment. Section 150A is headed ‘Restrictions on liberty or freedom of movement’. It provides:

A disability service provider must not detain a person with an intellectual disability otherwise than in accordance with this Part.

‘Detain’ is broadly defined under the Disability Act:

detain, in Part 8, includes—
(a)physically locking a person in any premises; and
(b)constantly supervising or escorting a person to prevent the person from exercising freedom of movement; …[39]

[39]Disability Act s 3.

The Secretary submits that s 150A is not to be construed as precluding detention of children with an intellectual disability pursuant to the provisions which would otherwise apply to them under the CYF Act.

Because the Secretary is defined to be a disability service provider there is a potential inconsistency between the terms of the two Acts. In particular it may be recalled the Secretary has the following powers under the CYF Act:

· the power of the Secretary to act pursuant to s 172(1)(b) to exercise the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have;

· the right of the Secretary to sole custody of the child under s 172(2) of the CYF Act;

· the power of the Secretary under s 172(3) of the CYF Act to detain without warrant any child who is in the custody or under the guardianship of the Secretary; and

· the placement powers of the Secretary and in particular the power to place a child in a SWS pursuant to s 173(2)(b).

There is also a potential inconsistency between the purposes governing the exercise of the Secretary’s powers under the two Acts. Under the CYF Act the best interests of the child are the paramount consideration. On the other hand, pt 8 of the Disability Act is substantially directed towards the detention of and restriction of disabled persons in order to avoid the significant risk of serious harm to others.

Before addressing pt 8 it should be stressed that the evidence as a whole does not demonstrate Beth is at significant risk of causing serious harm to others if she is not detained. Rather it shows that she is at significant risk of causing serious harm to herself and of some ongoing risk of causing harm to others if not detained.

Division 1 of pt 8 of the Disability Act provides for residential treatment facilities and stipulates that a person with a disability may only be admitted to such a facility if the Secretary is satisfied of a number of matters which focus on the risk of harm to others and may or may not be congruent with the best interests of the child:

(1)A person with a disability may only be admitted to a residential treatment facility if the Secretary is satisfied that—
(a)the person has an intellectual disability; and
(b)the person presents a serious risk of violence to another person; and
(c)all less restrictive options have been tried or considered and are not suitable; and
(d)the residential treatment facility can provide services for the treatment of the person with a disability and that treatment is suitable for that person; and
(e)the Senior Practitioner has been notified of the proposed admission; and
(f)an order specified under subsection (2) applies to the person enabling compulsory treatment to be provided.

(2)For the purposes of subsection (1)(f), the following orders are specified—
(a)a residential treatment order made under the Sentencing Act 1991;
(b)a parole order made under the Corrections Act 1986;
(c)a custodial supervision order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
(d)an order transferring the person from a prison under section 166;
(e)an extended supervision order made under the Serious Sex Offenders Monitoring Act 2005;
(f)a supervision order or interim supervision order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009.[40]

[40]Disability Act s 152 (emphasis added).

The purpose of div 5 is stated by s 183:

The purpose of this Division is to provide for the making of a civil order, a supervised treatment order, to enable the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.

Part 8 provides generally for residential treatment directed to people involved in the criminal justice system.[41]
[41]See Disability Act s 152(2) quoted above.

After the provisions of s 152 which relate to the custodial situations to which I have already referred, div 2 of pt 8 provides for leave arrangements relating to residential treatment order residents. Division 3 provides for security residents comprising prisoners and others lawfully detained in custody. Division 4 relates to forensic residents detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

On the other hand, div 5 provides more generally for the making of supervised treatment orders and div 6 provides for restrictive interventions under treatment plans prepared under this part of the Act.

Insofar as supervised treatment orders[42] are concerned, the Victorian Civil and Administrative Tribunal (‘VCAT’) can only make a supervised treatment order pursuant to s 191(6) in the following circumstances:
[42]Section 3 defines supervised treatment order to mean:
supervised treatment order means a civil order made in respect of a person with an intellectual disability under section 191;

VCAT can only make a supervised treatment order if VCAT is satisfied that—
(a)the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;
(b)there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;
(c)the services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;
(d)the person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person;
(e)it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.[43]

[43]Disability Act s 191 (emphasis added).

Section 190 requires the use of supervised treatment to be supervised by an authorised program officer (being a person either appointed by or approved by the Secretary).[44] Applications for supervised treatment orders can only be made by such persons (subject to the supervision of the Senior Practitioner)[45] and, in default of such an application, in appropriate circumstances by the Public Advocate.[46]
[44]Disability Act s 3.
[45]Disability Act s 191(2).
[46]Disability Act s 194.

It can be seen that whether by reference to orders relating to persons in different categories of custody (s 152(1)(b)) or by reference to the notion of supervised treatment orders (s 191(6)), a fundamental pre-condition to the operation of pt 8 is that the person under a disability constitute either a serious risk of violence to another or significant risk of serious harm to others. These concepts are potentially in conflict with the notion of powers exercised for the paramount purpose of the best interests of a child.

In my view s 150A must be read as subject to such rights to detention as are created:

(a) by an order made in the parens patriae jurisdiction; and

(b) by a decision made in the best interests of a child under the CYF Act.

The first exception flows from the very nature of the parens patriae jurisdiction to which I shall shortly turn. That jurisdiction is intended to supplement the care and protection of vulnerable members of the community where amongst other things relevant statutory provisions would not adequately do so. The jurisdiction is not excluded by the terms of the Disability Act for reasons I shall explain below.

Although it may be strictly unnecessary to decide the point, I am also of the view that s 150A, which makes general provision with respect to persons under an intellectual disability, must be subject to a potential exception with respect to that class of such persons comprising children who are subject to a special vulnerability because of their age and in respect of which the CYF Act provides for orders for compulsory treatment only in circumstances which are in their best interests.

I have reached this view despite the fact that, as the Public Advocate submits, it is possible to hypothesise factual scenarios under which the provisions of the Disability Act could be appropriate to deal with a child.

In Saraswati v R,[47] Gaudron J stated:

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict.),[48] per Fullagar J, and per Windeyer J.[49]

[47](1991) 172 CLR 1, 17 (applied in Shergold and Tanner (2002) 209 CLR 126, 136-7 [34]).

[48](1961) 106 CLR 268, 276.

[49]Ibid 290.

A later Act is not to be interpreted as impliedly withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.[50]
[50]Pearce & Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 6^th ed, 2006) 254; Shergold and Tanner (2002) 209 CLR 126, 136; Re Applications of Shephard [1983] 1 NSWLR 96.

In Coco v R,[51] Mason CJ, Brennan, Gaudron and McHugh JJ said:

The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.[52]

[51](1994) 179 CLR 427.

[52]Ibid 437 (citation omitted).

In the present case the Court was not referred to any extrinsic materials supporting the view that it was the intention of Parliament by s 150A of the Disability Act to override the provisions of the CYF Act.

A primary objective of the Disability Act is to advance the inclusion and participation in the community of persons with a disability.[53] In turn the Act adopts principles which acknowledge that persons with a disability have the same rights as other members of the community. In particular, s 5(1) and (2)(a)-(d) state:
[53]Disability Act s 4(a).

(1)Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.
(2)Persons with a disability have the same right as other members of the community to—
(a)respect for their human worth and dignity as individuals;
(b)live free from abuse, neglect or exploitation;
(c)realise their individual capacity for physical, social, emotional and intellectual development;
(d)exercise control over their own lives; …

This framework supports the view that children with a disability should have the same rights to care and protection in their best interests as children who do not. If this is to occur then the protective provisions of the CYF Act must be given application to them.

Section 5(3), which recognises that the needs of disabled persons may differ at different stages of their lives, is also consistent with this view, as are the provisions of s 6(1)(d) and (e) referred to above.

Section 17(2) of the Charter also supports this construction. It provides that Beth has the right to such protection as is in her best interests and is needed by her by reason of being a child.

In turn s 32(1) of the Charter provides that, so far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Conversely, although there may be a tension in this case between s 17(2) and the liberty right contained in s 21(1) of the Charter, the construction I prefer would not be contrary to the specific liberty rights contained in s 21 of the Charter which include:

(2)A person must not be subject to arbitrary arrest or detention.
(3)A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

The application of the provisions of the CYF Act would not result in either arbitrary detention[54] or deprivation of liberty other than in accordance with procedures established by law.
[54]See Victoria Police Toll Enforcement & Anor v Taha & Anor [2013] VSCA 37, [198]-[199]; WBM v Chief Commissioner of Police [2012] VSCA 159, [114].

The overlap between the literal terms of s 150A and the provisions of the CYF Act arises from the Secretary’s choice to use the nominated agency – as a disability service provider – to operate the house. It would be anomalous if the Secretary could not choose the nominated agency as an out of home carer under the CYF Act because it is a registered disability service provider.

Part 7 of the Disability Act

If it is accepted that pt 8 of the Disability Act does not apply to Beth, then she is not a person for whom a treatment plan is in force or required to be prepared under pt 8[55] and, as the proposed order records under ‘OTHER MATTERS’, she falls within the terms of s 133(1):

This Part applies to persons with a disability (other than persons for whom a treatment plan is in force or is required to be prepared under Part 8).[56]

[55]See s 133(1).

[56]Disability Act s 133.

Section 133(2) of the Disability Act describes the mechanisms which the Disability Act adopts with respect to restrictive interventions.

The purpose of this Part is to protect the rights of persons to whom this Part applies by ensuring that restrictive interventions are—
(a)included in behaviour support plans for those persons only in accordance with this Part; and
(b)used on those persons only if the requirements imposed by this Part are complied with.[57]

[57]Disability Act s 133.

Sections 134 and 135(1) and (4) relevantly provide as follows:

134 Use of restrictive interventions
A disability service provider must not use a restrictive intervention on a person to whom this Part applies unless there is in force an approval under section 135.
…
135 Approval to use restrictive interventions
(1)A disability service provider, other than the Secretary, who proposes to use restrictive interventions in the provision of a disability service must apply to the Secretary for approval.
…
(4)In the case of a disability service in respect of which the disability service provider is the Secretary, the Secretary—
(a)is to be taken to be approved to use restrictive interventions; and
(b)must ensure that an Authorised Program Officer is appointed for the disability service; and
(c)must approve the title of any position and the name of the holder of the position to be appointed as an Authorised Program Officer.

In turn s 139 describes the role of authorised program officers:

(1)An Authorised Program Officer must ensure that any restrictive intervention used on a person to whom this Part applies in the provision of a disability service for which the Authorised Program Officer is responsible is administered in accordance with this Part.
(2)A disability service provider must advise the Senior Practitioner of the name and qualifications of any person appointed as an Authorised Program Officer in the manner and within the period determined by the Senior Practitioner.
(3)The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer.

Section 140 governs the use of restraint and seclusion:

Unless section 147 applies, restraint or seclusion can only be used on a person to whom this Part applies—
(a) if the use of restraint or seclusion is necessary—
(i)to prevent the person from causing physical harm to themselves or any other person; or
(ii)to prevent the person from destroying property where to do so could involve the risk of harm to themselves or any other person; and

(b)if the use and form of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances; and
(c)if the use and form of restraint or seclusion—
(i)is included in the person's behaviour support plan; and
(ii)is in accordance with the person's behaviour support plan; and
(iii)is not applied for longer than the shorter of the following periods—
(A)the period of time that has been authorised by the Authorised Program Officer; or
(B)the period of time during which the use of the seclusion or restraint is necessary under paragraph (a); and

(d) if seclusion is to be used—
(i)the person is supplied with bedding and clothing which is appropriate in the circumstances; and
(ii)the person has access to adequate heating or cooling as is appropriate in the circumstances; and
(iii)the person is provided with food and drink at the appropriate times; and
(iv)the person is provided with adequate toilet arrangements; and

(e)if any other requirements imposed by the Senior Practitioner are complied with.

It can be seen that the requirement under s 140(a) is potentially inconsistent with the specific provisions of the CYF Act relating to the Secretary’s powers and with the paramount principle of best interests of the child which governs discretionary decision making under the CYF Act. On the other hand, its requirements should in fact be met in Beth’s case (although not necessarily on a continuing basis). In particular s 140(a), unlike pt 8, envisages the use of seclusion or restrictions inter alia to prevent a person causing physical harm to themselves or others, and does not set the requirement for the risk of harm to others in terms of ‘significant risk of serious harm’.

In turn, s 141 requires the development of a behaviour support plan in circumstances where the criteria of s 140(a) and (b) are satisfied and it is proposed to exercise powers under s 140:

(1)This section applies if a disability service provider providing a disability service to a person to whom this Part applies—
(a)is satisfied that the criteria specified in sections 140(a) and 140(b) apply; and
(b)proposes to use restraint or seclusion on the person.

(2)The disability service provider must develop a behaviour support plan for the person to whom this Part applies that includes provisions which—
(a)state the circumstances in which the proposed form of restraint or seclusion is to be used for behaviour support;
(b)explain how the use of restraint or seclusion will be of benefit to the person;
(c)demonstrate that the use of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances.

(3)In preparing the behaviour support plan, the disability service provider must consult with—
(a)the person for whom the behaviour support plan is prepared;
(b)if the person for whom the behaviour support plan is prepared has a guardian, the guardian;
(c)if other disability service providers provide disability services to the person for whom the behaviour support plan is prepared, a representative of each disability service provider;
(d)any other person that the disability service provider considers integral to the development of the behaviour support plan.[58]

[58]Disability Act s 141.

Section 141(2) in effect requires a behaviour support plan to demonstrate that it is in the best interests of the person for whom it is prepared, including demonstrating that the use of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances.

The Act vests the ultimate decision as to whether a restrictive intervention is necessary in the Secretary[59] and requires the disability service provider to prepare a behaviour support plan where a restrictive intervention is proposed.[60]
[59]Disability Act s 135.
[60]Disability Act s 140(a).

Sections 142 to 146 provide a series of review processes with respect to the behaviour support plan. They require a periodic review of a behaviour support plan by a disability service provider;[61] the provision of an independent person to explain to a person affected their rights in respect of a proposed use of restraint or seclusion;[62] the provision of an independent person to advise a person to whom this part of the Disability Act applies with respect to the proposed use of restraint or seclusion in the person’s proposed behaviour support plan; the supervision of this process by the Public Advocate;[63] approval of the use of restraint or seclusion in the behaviour support plan by the Authorised Program Officer;[64] and review of the behaviour support plan by VCAT.[65]
[61]Disability Act s 142.
[62]Disability Act s 143.
[63]Disability Act s 144.
[64]Disability Act s 145.
[65]Disability Act s 146.

Section 147 provides for the use of restraint or seclusion in an emergency. The opening words of s 140, which provide that unless s 147 applies restraint or seclusion can only be used on a person to whom pt 7 applies if the subsequent requirements of s 140 are satisfied, are buttressed by s 149 which provides:

A disability service provider who, except as provided in section 140 or 147, applies restraint or seclusion to a person to whom this Part applies is guilty of an offence against this Act.[66]

[66]Disability Act s 149.

The combination of ss 140 and 149 raise a parallel problem of potential inconsistency with the CYF Act to that raised by the provisions of s 150A.

In the present case, I am satisfied that the scheme of pt 7 is capable of application to Beth subject to the overriding supplementary authorisation of the Court by way of an order made pursuant to the parens patriae jurisdiction. Because the Secretary accepts that a behaviour support plan can and should be prepared for Beth which includes within it the case and stability plans that would otherwise be required under the CYF Act, there is no necessary inconsistency between the application of pt 7 and the CYF Act.

Nevertheless the same considerations that support the view that pt 8 of the Disability Act is to be read subject to the specific provisions of the CYF Act would also support the same conclusion in respect of pt 7 in the case of inconsistency in the operation of the two statutory schemes.

In turn ss 140 and 149 are to be construed as implicitly subject to exceptions properly authorised under the CYF Act.

Likewise, for reasons I shall now explain, the provisions of pt 7 must also be read subject to the terms of any order in the parens patriae jurisdiction of this Court supplementing the provisions of the CYF Act.

The parens patriae jurisdiction

The parens patriae jurisdiction of this Court derives from the Royal prerogative. It is directed to the protection of children who are not legally competent to look after themselves. As Brennan J stated[67] in Marion’s case:[68]
[67]Albeit in dissent.
[68]Secretary, Department of Health and Community Services and JWB & Anor (‘Marion’s case’) (1992) 175 CLR 218, 279-80.

That jurisdiction was originally vested by the royal prerogative in the English Court of Chancery and is vested in courts whose jurisdiction is defined by reference to the jurisdiction of that Court as it stood before the warrant delegating the prerogative power to the Lord Chancellor was revoked. The nature of the jurisdiction was stated by Lord Esher MR in Reg v Gyngall:
The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.

The parens patriae jurisdiction has become essentially protective in nature and protective orders may be made either by the machinery of wardship or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected. The court is thus vested with a jurisdiction to supervise parents and other guardians and to protect the welfare of children.
Although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Fitzgibbon LJ in In re O'Hara and adopted by the House of Lords in J v C:
In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.[69]

[69]Ibid (citations omitted).

In Victoria, the Supreme Court has such jurisdiction and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.[70] Immediately before the commencement of the Supreme Court Act 1986 on 1 January 1987, s 85(2) and (3) of the Constitution Act 1975 defined the jurisdiction of the Supreme Court by equating it to the jurisdiction of the Superior Courts in England and of the Lord High Chancellor including jurisdiction in relation to probate and matrimonial causes and administration of assets at or before the commencement of Act No 502. That Act commenced on 4 January 1875.
[70]Constitution Act 1975 s 85(3).

The nature of the parens patriae jurisdiction was further described by Mason CJ, Dawson, Toohey and Gaudron JJ in Marion’s case as follows:

As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J in Re Eve. His Lordship pointed out that ‘[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.’ In Wellesley v Duke of Beaufort, Lord Eldon LC, speaking with reference to the jurisdiction of the Court of Chancery, said:
[I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.

When that case was taken on appeal to the House of Lords, Lord Redesdale noted:
Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way.

Lord Redesdale went on to say that the jurisdiction extended ‘as far as is necessary for protection and education’.
To the same effect were the comments of Lord Manners who stated that ‘[i]t is ... impossible to say what are the limits of that jurisdiction’. The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle. However, as appears from the authorities discussed earlier, the jurisdiction has been exercised in modern times so as to permit medical operations on infants which result in sterilization.
No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power.[71]

[71]Marion’s case (1992) 175 CLR 218, 258-9 (citations omitted).

Their Honours went on to describe the essential function of a court exercising jurisdiction of the kind in issue as being that of deciding whether in the circumstances of the case the order sought is in the best interests of the child.[72]
[72]Ibid 259.

They went on to recognise that the phrase ‘the best interests of the child’ is imprecise but observed that it is no more so than the ‘welfare of the child’ and other concepts with which courts must grapple.[73]
[73]Ibid 259.

A recent example of the exercise of the jurisdiction is the decision of White J in Children, Youth and Women’s Health Services v YJL,[74] authorising the giving of a blood transfusion by a hospital to a 10 year old boy undergoing chemotherapy treatment, against the wishes of the boy and his parents who were Jehovah’s Witnesses.
[74][2012] SASC 175.

In Re Thomas,[75] Brereton J contrasted that aspect of the jurisdiction which authorises a particular course of action which the parents or guardian of a child do not wish to adopt and that which authorises acts beyond the powers and rights of a guardian.
[75][2009] NSWSC 217.

The latter category is exemplified by Marion’s case,[76] in which the High Court held that the Court’s power extended to authorising sterilisation of a child in circumstances where the parent or guardian could not consent.[77]
[76]Marion’s case (1992) 175 CLR 218.
[77]Ibid 249-254 (Mason CJ, Dawson, Toohey and Gaudron JJ).

In Re Thomas,[78] the Director General of the Department of Community Services (NSW) sought orders authorising the detention of a 16 year old boy indefinitely in a secure unit and the restraint and medication of him as circumstances required. Brereton J held that the jurisdiction extended to making orders of the type sought and observed:[79]

Orders interfering with personal integrity and liberty have been made sufficiently often now that it must be accepted that the jurisdiction permits them. In Re W[80] the Court of Appeal upheld a court order for treatment for a young person with anorexia nervosa, holding that her wishes, while relevant, were not conclusive. Re C[81] also involved a young woman with anorexia nervosa, who was ordered by the Court to remain at a clinic for treatment until discharged by her doctor or further order – and the court’s order provided for the use of reasonable force, if necessary, to detain her. Marion’s Case, as has been mentioned, resulted in the authorisation of the permanent procedure of hysterectomy, a serious invasion of personal integrity. In DoCS v Y, Austin J made orders to the effect that the child be returned to the Children’s Hospital without her consent, to resume a course of treatment for anorexia nervosa, and authorising the hospital staff to detain her, using reasonable force if necessary. Orders substantially similar to those proposed in the present case have been made by this Court in Re Christina[82] and Re Nellie.[83]

[78][2009] NSWSC 217.

[79]Ibid 231-2 [34]. See also Re K [2001] 2 All ER 719, to which his Honour referred at 233-4 [38].

[80][1992] 3 WLR 758; [1992] 4 All ER 627.

[81][1997] 2 FLR 180.

[82](2168/07, 5 April 2007).

[83](5150/08, 10 October 2008).

It is common ground between the parties that the provisions of the CYF Act and Disability Act do not exclude the parens patriae jurisdiction.

(1) The sole right to custody and guardianship granted to the Secretary pursuant to s 172 of the CYF Act does not exclude the jurisdiction.[84]
[84]Johnson v Director General of Social Welfare (Victoria) (1976) 135 CLR 92.

(2) The jurisdiction extends to making orders which a parent or guardian might not make.[85]
[85]Marion’s case (1992) 175 CLR 218; Re Thomas [2009] NSWSC 217.

(3) By its nature the jurisdiction may be invoked to supplement a statutory scheme, as Mason J explained in respect of broadly analogous legislation in Carseldine & Anor v The Director of the Department of Children’s Services:[86]
[86](1974) 133 CLR 345, 366.

Although the legislative scheme is far-reaching I do not think that its extensive character is a sufficient ground for concluding that the prerogative jurisdiction of the Supreme Court is entirely displaced. There may be occasions for its exercise in aid of the Director's statutory responsibilities or when it appears that the Director is not discharging his responsibilities or exercising his powers in conformity with the Act. The vesture of wide and general powers in the Director is not inconsistent with the continued existence of the Supreme Court's inherent jurisdiction, notwithstanding a reluctance, or perhaps an incapacity, on the part of the Court to exercise that jurisdiction when the Director is acting in conformity with the Act and is not invoking the assistance of the Court.

(4) It would take the clearest language to displace the Court’s jurisdiction. In Johnson’s case[87] Barwick CJ put the common law principle in the following terms:

A series of decisions in the Supreme Court of New South Wales have adopted the practice in its parens patriae jurisdiction that the children the subject of the proceedings be represented by analogy to the way that they would have been represented in child protection proceedings before the Children’s Court.[122] They include the following authorities.
[122]See Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644.

In Re Thomas,[123] 16 year old Thomas, who was diagnosed with various combinations of mild to moderate developmental delay ‘giving him an intellectual age of about 6 years’, along with other disorders, trauma and depression, was separately represented.
[123][2009] NSWSC 217.

In Re Helen,[124] the New South Wales Supreme Court made similar orders to those in Re Thomas in respect of an application to place a 14 year old girl in a secure facility, noting that ‘those orders also provide for Helen to be separately represented’ and requesting the Legal Aid Commission to arrange for such representation.
[124][2010] NSWSC 1560.

In Re Vernon,[125] the Director-General and the Minister sought orders to authorise the placement, restraint and medication of a 13 year old boy who suffered from a form of autism and developmental delay. An independent legal representative was appointed at the request of the Director-General and the Minister.[126]
[125][2011] NSWSC 1222.
[126]Ibid [7].

In Re Alexis,[127] the Director-General for the Department of Family and Community Services and the Minister for Family and Community Services applied to the Supreme Court of New South Wales for orders authorising the detention of a 14 year old girl in a lockable facility for the purposes of her care, treatment, education and the protection of both herself and others from harm. The decision noted that ‘as is customary in such matters’ Alexis was separately represented by a legal representative through the Legal Aid Commission of New South Wales.[128]
[127][2011] NSWSC 1545.
[128]Ibid [18].

In Re Jessica,[129] the New South Wales Supreme Court made orders authorising a 15 year old girl subject to uncontrollable violent behaviour to be transported to and detained in a hospital. The orders proposed by the Minister for Community Services and Director-General of the Department of Community Services were consented to by the child’s mother (as a party) and a separate representative of the young person. Although the representative had not sought instructions from the young person and ‘the taking into account of the young person’s wishes [was] precluded as a practicable course by the extremes of the young person’s behaviour demonstrated by the evidence’, the Court was assured that the representative had had the highest degree of co-operation from the plaintiffs and the staff of the institutions in which the young person had been, in keeping herself abreast of the young person’s progress. The representative had been able to participate in consultations concerning the ongoing situation.[130] The Court relied heavily on this assurance and on the continued assistance of the representative.
[129][2001] NSWSC 1207.
[130]Ibid [4].

I accept that the New South Wales practice should be followed and that the nature of separate legal representation for the child afforded in the parens patriae jurisdiction should generally align with the appropriate model that applies in child protection proceedings in the Children’s Court of Victoria under the CYF Act having regard to the rights and best interests of the child. Such representation has been considered by this Court in recent decisions.[131]
[131]Secretary to the Department of Human Services v Sanding [2011] VSC 42; A & B v Children’s Court of Victoria [2012] VSC 589.

The CYF Act provides two models of legal representation, namely a direct instructions model and a best interests model. Section 524(10) provides that where a young person is mature enough to instruct, he or she is to be represented on a direct instructions model of representation. Section 524(11) provides that where a child does not have the capacity to instruct he or she should be represented on a best interests representation model. In A & B,[132] Garde J observed:

The nature of direct legal representation and of best interests legal representation is very different. In the first, the child gives the instructions and the legal practitioner must act in accordance with them so far as it is practicable to do so. In the second, the legal practitioner acts in what he or she considers to be the best interests of the child. The obligation of the legal representative to the child is fundamentally different in the two cases. Nonetheless even in best interests legal representation, the legal practitioner to the extent that it is practicable to do so must communicate to the Court the instructions given or wishes expressed by the child.
Subsection 524(11) describes what best interests representation involves. It adds to the rights of a child, because in the absence of such a provision, a legal practitioner cannot act for a child on a best interests basis. However, it lacks two of the hallmarks of the lawyer – client relationship: the duty to obtain and adhere to instructions, and the confidentiality of privileged communications. The role is essentially one of representing the child in accordance with what the legal representative believes are the best interests of the child.[133]

[132]A & B v Children’s Court of Victoria [2012] VSC 589.

[133]Ibid [84]-[85].

On the other hand I do not accept that it is necessary to request Legal Aid to provide ongoing legal representation on a continuing basis prior to any formal review of the appropriateness of the order. I further accept the Secretary’s submission that the evidence does not establish that it could be provided without potential detriment to the therapeutic environment.

The Charter

The Secretary is a public authority under the Charter.[134] Section 38(1) and (2) of the Charter provides:

(1)Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.[135]

[134]Charter s 4(1)(a):

For the purposes of this Charter a public authority is –

(a) a public official within the meaning of the Public Administration Act 2004.

[135]Charter s 38(1) and (2).

The Commission submits that in the light of the Secretary’s obligations under s 38 and the serious restrictions on human rights that the proposed orders authorise, ‘the Court must be satisfied the making of these orders will not result in the Secretary acting in a way that is incompatible with the relevant human rights.’ The Commission further submits that under the Charter, human rights are not absolute, but any limitation on human rights will only be compatible with the Charter if it is a reasonable limit that satisfies ‘the strict standard of justification in section 7(2)’[136] which provides:
[136]PJB v Melbourne Health (Patrick’s case) [2011] VSC 327, [330].

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a)the nature of the right; and
(b)the importance of the purpose of the limitation; and
(c)the nature and extent of the limitation; and
(d)the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.[137]

[137]Charter s 7(2).

In my opinion, s 38(1) of the Charter does not in strictness fetter the Court’s powers to make orders in the parens patriae jurisdiction. Section 38(2) means that the Secretary will be bound by the terms of the Court’s order despite s 38(1) insofar as it requires the Secretary not to act differently or make different decisions.

Nevertheless, it can hardly be doubted that consideration of Beth’s human rights illuminates the concept of her best interests. Moreover, the Secretary accepted that although the Court is not bound by s 38, the Court should satisfy itself that the proposed orders will result in the Secretary acting compatibly with Beth’s human rights.

Further, both the caution of the common law and the analogy of the schemes of the CYF Act and Disability Act support the view that the principles stated in s 7(2) of the Charter concerning reasonable limits should be seen as implicitly conditioning and informing the Court’s discretion with respect to the parens patriae jurisdiction independently of s 7(2). In particular the Court’s orders should not go beyond authorising the least restrictive means reasonably available to achieve the purpose which the limitation seeks to achieve.

It follows from my ultimate conclusions that the limitations on human rights authorised by the proposed order are reasonable and satisfy the requirements of s 7(2). The limitations which the orders involve upon Beth’s right to liberty,[138] privacy,[139] freedom of movement,[140] and potentially freedom from medical treatment without consent,[141] are reasonable, necessary and proportionate in the circumstances of her case. In written submission, the Commission conceded that the Secretary could implement the proposed arrangements compatibly with the Charter ‘if the arrangements were only those necessary to achieve the purpose of caring for and protecting Beth and continue to be the least restrictive means reasonably available to achieve this purpose. This could be achieved through the provision of appropriate safeguards and oversight of the care, detention and treatment arrangements.’[142]
[138]Charter s 21.
[139]Charter s 13(a).
[140]Charter s 12.
[141]Charter s 10(c).
[142]Additional submissions of the Commission 1 March 2013, [4], [7] and [8].

In my opinion, these concessions were properly made. An underlying contextual reality is that, as the Secretary submitted, the probability is that if the orders are not made Beth will suffer substantial involuntary confinement either within SWS or the youth justice system as she has in the past.

Conclusion

I would grant the orders sought substantially on the conditions proposed. I am satisfied on the whole of the evidence that they are in the best interests of Beth. In so concluding I have regard in particular to the following matters:

(a) that they respond directly to a factor recognised by the CYF Act as potentially bearing upon the best interests of a child, namely the desirability of continuity and stability in a child’s care;[143]
[143]Section 10(3)(4).

(b) that they are necessary to supplement the statutory regimes otherwise potentially available to provide for Beth’s care;

(c) that Beth has made significant progress since moving to the nominated agency pursuant to the interlocutory order of Cavanough J and that progress is likely to continue if the orders sought are made;

(d) that if the orders proposed are not made, Beth will be deprived of stable care and will in all probability suffer both significant harm and hindrance to her personal development;

(e) that if such orders are not made Beth has no other reasonable prospects of obtaining satisfactory care and protection and in particular appropriate secure and stable accommodation and care;

(f) that the proposed conditions adequately restrict the use of seclusion and restrictive interventions to what is reasonably necessary and will be applied in accordance with the principle that Beth’s carers will seek to use the least restrictive measures necessary;

(g) that the proposed orders can and should be appropriately limited in duration and subject to review;

(h) that the proposed care will be appropriately planned, supervised and monitored; and

(i) that the Secretary has committed substantial ongoing resources to the care of Beth which have enabled and will continue to enable the arrangements in issue to operate satisfactorily.

The overall benefit to Beth will be a net benefit in the sense that it will come at the price of material interference with her human rights, including in particular her rights to liberty. Nevertheless, I am satisfied that this interference will be reasonable, necessary and proportional in the circumstances of Beth’s case. In turn, the net contribution of the proposed orders to Beth’s best interests will on balance be very substantial.

In Re Thomas[144] Brereton J concluded that:

deprivation of a child’s liberty for protective purposes, as distinct from following conviction of an offence, may be justified and even necessitated by the protection and promotion of the child’s welfare and in those circumstances will not contravene the child’s human rights. Since protection and promotion of the child’s welfare lies at the heart of the parens patriae jurisdiction, I would hold that jurisdiction extends to authorise the orders sought.[145]

I have reached a like conclusion.

[144][2009] NSWSC 217.

[145]Ibid [38].

I am fortified in the above conclusions by the fact that all of the parties agree the primary orders sought by the Secretary are capable of being regarded as being in Beth’s best interests and that all of the parties agree appropriate conditions can be formulated for the purposes of a Court order although there is disagreement as to some aspects of those conditions.

Subject to any further submissions of the parties as to form, I propose to make the following orders: [146]
[146]The passages italicised differ from or add to the terms of the orders sought by the Secretary.

OTHER MATTERS:
1.The Victorian Equal Opportunity and Human Rights Commission intervened in these proceedings pursuant to s 40 of the Charter of Human Rights and Responsibilities Act 2006.

2. The Court notes that it is common ground that:
1.Subject to this order, pt 7 of the Disability Act 2006 (‘the Disability Act’) applies to [the nominated agency] as a ‘disability service provider’ as defined in s 3 of the Disability Act, and applies to Beth because she satisfies the criteria in s 133 of the Disability Act.
2.The supervision of community visitors under div 6 of pt 3 of the Disability Act applies to [the nominated agency] in its care of Beth.
3.The Child Safety Commissioner is empowered to monitor the conditions under which Beth is residing and being cared for, pursuant to pt 4 of the Commission for Children and Young People Act 2012.
4.The Public Advocate is empowered to inspect the premises at which Beth is being cared for, see Beth and make inquiries relating to her care, detention and treatment or control pursuant to s 18A of the Guardianship and Administration Act 1986.

THE COURT ORDERS THAT:
1.Until the making of orders pursuant to the review referred to in paragraph 5 or further order, and notwithstanding the provisions of pt 7 and pt 8 of the Disability Act and the provisions of s 173(2)(b) of the Children, Youth and Families Act 2005, the Secretary and those acting under her direction are authorised to place Beth in the residential facility described in the affidavit of Robyn Miller dated 22 November 2012 (being premises operated and staffed by [the nominated agency]) and to use, and direct staff at [the nominated agency] to use, whatever means may be reasonably necessary for that purpose, including lock up facilities, provided always that the staff at [the nominated agency] seek to use the least restrictive means necessary.
2.Until further order, the Secretary and those acting under her direction and the staff at [the nominated agency] are authorised to use restrictive interventions (as that expression is defined in s 3 of the Disability Act) on Beth and, as far as is necessary, to use reasonable force in doing so, provided always that they seek to use the least restrictive means necessary.
3.No later than 6 months after the date of this order, the Secretary shall file and serve on the intervenor and amici curiae a report from the Senior Practitioner, Specialist Services, Disability Services, Department of Human Services, or a person in a similar position, as to whether the orders in paragraphs 1 and 2 hereof continue to be required, together with any modifications which should be made to the orders to reduce the level of restrictions imposed on Beth. Such report is to:
a. address in detail:
i.why the orders (with any modifications) continue to be required in Beth's best interests, if that is the opinion she forms;
ii.the progress that Beth has made as against the statutory plans referred to in paragraph 3(b); and
iii.a summary of Beth's views on the placement;

b. attach the operative versions of:
i.the Behaviour Support Plan, which will comprise the Care and Case Plan which is currently Exhibit LS-1 to the affidavit of Linda Saffron affirmed on 26 November 2012 and the Care and Support Plan which is currently Exhibit 1 tendered at the hearing before Justice Cavanough on 27 November 2012; and
ii.the Statutory Case Plan under s 167 of the Children, Youth and Families Act 2005 including Stability Plan under s 170 of the Children, Youth and Families Act 2005, which is currently Exhibit B tendered at the hearing before Osborn J on 7 March 2013;

c.attach a report by the Senior Practitioner on the use of restrictive interventions since the hearing; and
d.attach reports from Beth's treating general practitioner and psychiatrist identifying what medications have been prescribed for Beth and why those medications have been prescribed.

4.The proceeding be listed for further mention before Associate Justice Daly or such other Associate Judge as the Associate Judge in Charge of Listing may nominate within 14 days after the filing and service of the report referred to in order 3.
5.The orders in paragraphs 1 and 2 hereof are to be the subject of a review by the Court on fresh evidence on or before 16 February 2014.
6.The Secretary, any intervenors and the amici curiae have liberty to apply on two days’ notice, such notice to specify any orders sought.
7.Subject to further order of the Court upon the hearing of the review required by order 5, Beth be separately represented and it is requested that Victoria Legal Aid provide for such representation. The role of the separate representative is to be akin to the role of a best interests lawyer as set out in s 524(11) of the Children, Youth and Families Act 2005.

These orders reflect the orders proposed by the Secretary save for the following matters:

(a) I have inserted the words ‘Subject to this order’ in the recital of matters that are common ground under ‘OTHER MATTERS’.

(b) I have expanded the proposed terms of order 1 to make clear that the terms of the order are intended to be given effect notwithstanding the provisions of pt 7 and pt 8 of the Disability Act and the provisions of s 173(2)(b) of the CYF Act. The Secretary’s powers arise as the person authorised and designated by that order made in the parens patriae jurisdiction of this Court. Subject to the operation of the order however pt 7 of the Disability Act is intended to apply to Beth.

(c) I have rejected the submission made by Legal Aid that the time specified for report under order 3 should be less than six months. I prefer the position accepted by the other parties that this is not practicable. I have however directed that the matter be listed for further mention following the filing of the report required by order 3 to ensure that its consequences are squarely addressed by the parties and if necessary brought to the Court’s attention. The possibility of such a direction was raised during the course of argument before me and was not opposed by the Secretary.

(d) I have fixed the time for review by reference to Beth’s 17^th birthday. This will allow for the substantial operation of the current arrangements for a period which by then will have exceeded 12 months but falling short of the period of 12 months from the date of my orders which is sought by the Secretary. The Court must strike a balance between the desirability of providing stability for Beth and the necessity to provide for timely review. The review I propose will also enable further arrangements to be put in place for a sensible period prior to Beth’s 18^th birthday.

(e) The order requires separate representation for Beth for the reasons I have already outlined.

The terms of order 3 were otherwise resolved by agreement between the parties during the course of the hearing before me.

I will give the parties a further opportunity to address the precise form of the order I am disposed to make.

[2013] VSC 189

23 April 2013