Re: Fernando & Gabriel
[2001] NSWSC 905
•17 October 2001
Reported Decision:
53 NSWLR 494
New South Wales
Supreme Court
CITATION: Re: Fernando & Gabriel [2001] NSWSC 905 FILE NUMBER(S): SC 10871/01; 10870/01 HEARING DATE(S): 4/6/01 JUDGMENT DATE:
17 October 2001PARTIES :
Fernando:
Minister for Community Services - 1st Plaintiff
Director-General, Department of the Department of Community Services - 2nd Plaintiff
The Children's Court of New South Wales - 1st Defendant
Father of "The Child" - 2nd Defendant
Gabriel:
Minister for Community Services - 1st Plaintiff
Director-General of the Department of Community Services - 2nd Plaintiff
The Children's Court of New South Wales - 1st Defendant
Mother of "The Child" - 2nd Defendant
Father of "The Child"- 3rd Defendant
JUDGMENT OF: Bell J at 1
COUNSEL : Mr P Singleton - Plaintiff in both matters
Ms K Reynolds - "the Child" in both matters
Mr R McLachlan - Father of "the Child" in FernandoSOLICITORS: I.V Knight - Plaintiff in both matters
Rowley & Ross Lawyers - ("the Child") in Fernando
Ellis McLachlan Solicitors - Father of "the Child" in Fernando
Heidi Muggenthaler & Assoc - ("the Child") in GabrielCATCHWORDS: Children's Court - emergency protection and care applications - interim orders - power to vest "care responsibility" in the Director-General LEGISLATION CITED: Children (Care and Protection) Act 1987
Children and Young Persons (Care and Protection) Act 1998CASES CITED: Re Edward [2001] NSWSC 284
Craig v South Australia (1995) 184 CLR 163
New Redhead Estate & Coal Co Ltd v New South Wales Coal Compensation Board [1999] NSWCA 464DECISION: Orders quashing the orders made in each case in the Children's Court deferred; parties given the opportunity of making submissions as to appropriate consequential orders
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
- 16 October 2001
Re:GABRIEL
Introduction
1 Her Honour: These two sets of proceedings were heard jointly. They raise like issues concerning the powers of the Children’s Court with respect to the making of interim orders pursuant to Chapter 5 of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”).
2 In each instance, pursuant to orders made by O’Keefe J on 26 March 2001, the proceedings have been styled by reference to a pseudonym. This approach serves to preserve the anonymity of the child (S 105(1) of the Act). I was informed that the Crown Solicitor has adopted a practice of seeking orders that cases be known by first names and to this end has been putting forward names in alphabetical sequence. This serves to avoid the confusion associated with the proliferation of cases identified only by initials and removes the possibility that the child might be identified by an inference drawn from his or her initials.
3 In each case the plaintiffs claim orders (i) in the nature of certiorari quashing the order made by a Magistrate in the Children’s Court allocating the parental responsibility for the child to the first plaintiff, the Minister for Community Services (“the Minister”), and (ii) a declaration that pursuant to s 49 of the Act the second plaintiff, the Director-General of the Department of Community Services (“the Director-General”) has the care responsibility of the child until a contrary order is made by a court of competent jurisdiction.
The Children’s Court proceedings concerning Fernando
4 Fernando is aged eleven years. His parents are separated and prior to the commencement of the proceedings Fernando was in the sole care of his father.
5 On 21 February 2001 Fernando was taken into the care of the Director-General pursuant to s 43 of the Act. That section confers power on the Director-General, upon satisfaction on reasonable grounds that the child is at immediate risk of serious harm and that the making of an apprehended violence order would not be sufficient to protect the child from that risk, to remove the child from the place of risk without warrant.
6 On 22 February 2001 the Director-General lodged an application for an emergency care order pursuant to s 45(1)(a) of the Act. The application was listed for hearing on 22 February 2001. In support of the application the Director-General relied on the affidavit of Dijana Busljeta, District Officer with the Department of Community Services. Ms Busljeta deposed to the Department receiving a notification on 24 November 2000 concerning Fernando’s presentation. The notifier reported the child often did not have lunch for school and presented with poor personal hygiene. Concerns were expressed as to his father’s drug use.
7 Ms Busljeta went on to state that on 21 February 2001 the second defendant (“the child’s father”) reported that he wished the Department to take his son, since the child’s life was in danger should he remain with him. The child had been left with the Principal of the school, the father stating that he would not be at home when the child was let out from school.
8 Ms Busljeta deposed to contact between another District Officer in the employ of the Department and Fernando’s natural mother. The mother reported that she was fearful for her life should she have the care of Fernando, since she believed the child’s father had orchestrated the current situation in an attempt to find out where she was living. She reported that there were no other members of the extended family able to care for Fernando. The mother was reported to be of the view that an apprehended violence order would not be sufficient to protect her.
9 It was against this background that Fernando was removed without warrant, officers of the Department of Community Services having formed the view that he was at immediate risk of serious harm. Both the parents were informed of the Director-General’s intention to seek an emergency care order from the Children’s Court.
10 On 22 February 2001 an order was made by the Children’s Court pursuant to s 46 of the Act, placing Fernando in the care and protection of the Director-General for a period of fourteen days.
11 On 6 March 2001, the Director-General lodged an application for extension of the emergency care and protection order. The application was listed for hearing on 8 March 2001. On 7 March 2001 the Director-General lodged an application for an order that Fernando be psychologically assessed and for an order that the parenting capacity of the father be assessed (“the assessment application”). The assessment application was also listed for hearing on 8 March 2001.
12 On 8 March 2001 the Children’s Court had a copy of a Court Update Report before it. On that occasion the Court made an order pursuant to s 46(4) of the Act extending the emergency care and protection order until 16 March 2001. The Court made a further order, pursuant to s 53 of the Act, for the assessment of the child.
13 On 13 March 2001 the Director-General lodged an application for care order pursuant to s 61 of the Act, with the Children’s Court. That application was supported by a further affidavit affirmed by Dijana Busljeta.
14 On 15 March 2001 the Director-General’s care application came on for hearing. A Court Update Report, jointly authored by Dijana Busljeta and Trina Whitton, Assistant Manager, Eastern Sydney Child and Family Community Services Centre, was before the Children’s Court on this occasion. In the concluding portion of that report it was stated that the Department was seeking an order that Fernando remain in the care of the Director-General.
15 On 15 March 2001 Mr McLachlan appeared on behalf of the child’s father in the proceedings before the Children’s Court. A separate representative appeared on behalf of the child. Mr McLachlan did not oppose the making of an order that Fernando be subject to the care responsibility of the Director-General.
16 The Magistrate expressed the view that there was no power for the Children’s Court to make an order placing the child in the care of the Director-General as an interim order. He made an order, until further order, that the parental responsibility for the child and all that goes with it should be allocated to the Minister. A contact order and assessment orders were also made. The latter two groups of orders are not the subject of challenge in these proceedings.
The Children’s Court proceedings concerning Gabriel
17 Gabriel was born in January of this year. Prior to the commencement of the proceedings in the Children’s Court he was in the sole care of his parents.
18 Thirteen days after his birth he was removed from the care of his parents pursuant to s 43 of the Act. The following day the Director-General lodged an application for an emergency care order with the Children’s Court. That application was supported by the affidavit of Jason McDonald affirmed on 19 January 2001. Relevantly that affidavit set out that both Gabriel’s parents had a history of heroin use. They had commenced on the methadone program but their compliance with the program had been unsatisfactory and they had failed to comply with oral undertakings given to departmental officers. Concern was expressed that Gabriel was not receiving medication.
19 On 19 January 2001 the Children’s Magistrate made an order pursuant to s 46 of the Act, placing Gabriel in the care and protection of the Director-General for a period of fourteen days.
20 On 31 January 2001 the Director-General lodged an application for an extension of the emergency care and protection order. That application came on for hearing on 1 February 2001. A Court Update report was before the Children’s Court on that occasion. The Court made an order pursuant to s 46(4) of the Act extending the emergency care and protection order until 16 February 2001.
21 On 15 February 2001 the Director-General made application pursuant to s 61 of the Act for a care order. That application was supported by an affidavit affirmed by Jason McDonald on 15 February 2001. The application was brought on for hearing on 16 February 2001. On this occasion Gabriel was represented, there was no appearance on behalf of his parents. There was an issue as to whether reasonable efforts had been made to notify the parents of the making of the care application by the Director-General. In these circumstances the Magistrate stated that she was not disposed to deal with the matter “to establishment”.
22 Mr Clark, on behalf of the child, submitted it was appropriate for the matter to go over for a period of time with an order that Gabriel be placed under the parental responsibility of the Minister during the adjournment. On behalf of the Department of Community Services it was submitted that the appropriate form of order was one placing Gabriel in the care of the Director-General. Her Worship heard submissions concerning the scope of her powers to make interim orders pending the final disposition of a care application. She determined to make an interim order vesting parental responsibility for Gabriel in the Minister. In so doing, her Worship expressed her satisfaction that, in the light of the contents of the affidavit of Jason McDonald, it was not in the best interests of the safety, welfare and well-being of Gabriel that he should remain with either parent. The proceedings were stood over to 1 March 2001 for further hearing.
23 On 1 March 2001 the matter came before another Magistrate. On this occasion Ms Davitt appeared on behalf of the parents. The Department of Community Services made application for a variation of the interim order made by the Magistrate on 16 February. The Magistrate declined to do so. The order allocating parental responsibility to the Minister remained in place pending the final disposition of the proceedings.
Chapter 5 of the Act
24 Chapter 5 of the Act is concerned with proceedings in the Children’s Court with respect to the emergency protection and assessment of children and young persons and with care applications.
25 Provision is made in Division 1 of Part I of Chapter 5 for the removal of children and young persons without warrant in circumstances where the Director-General (or a police officer) is satisfied, on reasonable grounds, that a child or young person is at risk of serious harm and that the making of an apprehended violence order would not be sufficient to protect the child or young person from that risk (s 43). Provision is also made for the Director-General to assume the care responsibility for a child or young person by order in writing in circumstances in which she suspects on reasonable grounds that the child or young person is at risk of serious harm (s 44). It is convenient to refer to the power conferred on the Director-General pursuant to these two provisions as “executive removal”.
26 Following executive removal of a child or young person the Director-General must apply to the Children’s Court at the first available opportunity, but not later than the next sitting day, for one or more of the orders referred to in s 45(1) (a) – (c) (in the event that she considers that no order is necessary she is not required to make application for an order – in such a case she must explain to the Court why no care application was made).
27 Section 46 permits the making of an order for emergency care and protection in circumstances where the Court is satisfied that the child or young person is at risk of serious harm.
28 Part 2 of Chapter 5 deals with care applications. A care application means an application for a “care order” (s 60). “Care Orders” are orders made under Chapter 5 for or with respect to the care and protection of children and young persons. Care orders provided for in Part 2 of Chapter 5 of the Act include orders accepting undertakings (s 73); orders for the provision of support services (s 74); treatment orders (s 75); supervision orders (s 76); orders allocating parental responsibility (s 79) and contact orders (s 86).
29 The Director-General may make an application for a care order pursuant to s 61 of the Act. The Director-General is the only person who may make such an application, except as provided by Chapter 5 of the Act.
30 The Children’s Court may make interim care orders after a care application is made and before it is determined pursuant to s 69 of the Act. It may make such other care orders as it considers appropriate for the safety, welfare and well-being of the child or young person in proceedings before it pending the conclusion of the proceedings pursuant to s 70 of the Act.
The grounds of challenge
31 In each case the plaintiffs contend that the order made by the Magistrate allocating parental responsibility to the Minister was beyond power. Section 79 of the Act provides a power to make an order allocating parental responsibility of a child or young person to the Minister. Power to make interim care orders is provided by s 69. An order allocating parental responsibility to the Minister is a care order. It is accepted that such an order may be made on an interim basis pursuant to s 69. However, in the plaintiffs’ submission such an order may only be made under s 69 if the prerequisites for the making of a final order allocating parental responsibility provided by s 79 of the Act have been met.
32 Section 79 provides:
- 79 Order allocating parental responsibility
(1) If the Children’s Court finds that a child or young person is in need of care and protection, it may:
- (a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility:
(i) to one parent to the exclusion of the other parent, or
(ii) to one or both parents and to another person jointly, or
(iii) to another suitable person, or
(b) make an order placing the child or young person under the parental responsibility of the Minister.
- (2) The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court include, but are not limited to, the following:
- (a) the residence of the child or young person,
(b) contact,
(c) the education and training of the child or young person,
(d) the religious upbringing of the child or young person,
(e) the medical treatment of the child or young person.
(4) The Children’s Court must not make an order allocating parental responsibility for a child or young person if the order would be inconsistent with any order in relation to the child or young person made by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children.
33 Thus, before an order might be made allocating parental responsibility to the Minister the plaintiffs contend it is necessary that the Magistrate find that the child is in need of care and protection for the purposes of s 79(1) and be satisfied that any other order would be insufficient to meet the needs of the child or young person for the purposes of s 79(3).
34 It is common ground that in neither case did the Magistrate find that the child was in need of care and protection. In neither case did the Magistrate express satisfaction that any order other than the allocation of parental responsibility to the Minister would be insufficient to meet the needs of the child.
35 Mr Singleton, who appeared on behalf of the plaintiffs, identified a further prerequisite for the making of the order allocating parental responsibility. Section 80 of the Act, relevantly, provides:
- The Children’s Court must not make an order:
……..
(b) For the allocation of parental responsibility in respect of the child, unless it has considered a care plan presented to it by the Director-General.
36 A care plan was not before the Children’s Court in either case.
37 Mr Singleton also referred me to the provisions of s 81 of the Act. Section 81 is in these terms:
- 81 Parental responsibility of the Minister
- (1) If the Children’s Court makes an order placing a child or young person under the parental responsibility of the Minister, the Children’s Court must determine:
- (a) which aspects (if any) of parental responsibility are to be the sole responsibility of persons other than the Minister, and
(b) which aspects of parental responsibility are to be the sole responsibility of the Minister, and
(c) which aspects (if any) of parental responsibility are to be exercised by the Minister and other persons,
(2) If an order places a child or young person under the sole parental responsibility of the Minister, the Minister must, so far as is reasonably practicable, have regard to the views of the young persons who had parental responsibility for the child or young person before the order was made.
(3) If aspects of parental responsibility are to be exercised jointly by the Minister and another person, either the Minister or the other person may exercise those aspects but, if they disagree concerning their exercise, the disagreement is to be resolved by order of the Children’s Court.
38 In neither case was it apparent that the Magistrate had given consideration to the range of matters set out in s 81(1)(a) - (c). Mr Singleton acknowledged that the provisions of s 81(1) were not expressed to be prerequisites to the making of an order allocating parental responsibility. In his submission they are considerations which must be taken into account in making any order (including an interim order) allocating parental responsibility to the Minister. They reflect the principle expressed in s 9(d) that the least intrusive intervention in the life of the child (consistent with protecting the child from harm and promoting the child’s development) is to guide any determination made by the Children’s Court in this respect.
39 Important to the plaintiffs’ submissions arising out of sections 80 & 81 of the Act is the fact that neither section is expressed to be limited to the making of orders allocating parental responsibility pursuant to s 79. The plaintiffs contend that the requirements of both sections apply to the making of an order allocating parental responsibility to the Minister, whether order is made under s 79 or otherwise. It is submitted that the power to make interim orders under s 69 of the Act is a general one. Sections 80 & 81 are specific provisions as to the making of orders allocating parental responsibility. Thus, it is argued, s 69 should be read as subject to them.
40 Both Ms Reynolds, who appeared in each of the proceedings on behalf of the child, and Mr McLachlan, who appeared in the case of Fernando on behalf of the father, submitted that it was open to the Magistrate (in each case) to make an order allocating parental responsibility to the Minister on an interim basis without the necessity for a finding that the child was in need of care and protection for the purposes of s 79(1) and without satisfaction of the matters to which s 79(3) refers. Additionally, both contended that it was not a prerequisite to the making of an interim order allocating parental responsibility that the Children’s Court have a care plan presented to it by the Director-General.
41 In Ms Reynolds’ submission there is no necessity to comply with the requirements of sections 79, 80 or 81 before the making of interim orders. The provisions of sections 79, 80 and 81 apply with respect to the making of final orders. In her submission the only requirement for the making of interim orders either pursuant to s 69 or s 70 is that posed by the section. Thus, s 69(2) places an onus on the Director-General to satisfy the Court that it is not in the best interests of the safety, welfare or well-being of the child or young person that he or she should remain with the persons having parental responsibility for him or her. The test provided by s 70 is in different terms, namely, the court’s satisfaction that the making of the order is appropriate for the safety, welfare and well-being of the child or young person. In Ms Reynolds submission s 69 governs the making of interim orders in care proceeding when the orders sought by the Director-General include removal of the child or young person from the person or persons who have parental responsibility for him or her. Section 70 provides the power to make interim orders in proceedings before the Children’s Court not being proceedings in which a care application has been made or being care proceedings in which the Director-General does not seek an order removing the child from those having parental responsibility for him or her.
42 I will return to the distinction between the making of interim care orders under s 69 and other care orders pending the conclusion of proceedings under s 70.
43 Both Ms Reynolds and Mr McLachlan submitted that it was necessary for the Magistrate, before making an interim order allocating parental responsibility to the Minister, to have regard to the principle that the least intrusive intervention in the life of the child (consistent with the paramount concern to protect the child from harm and promote his development) be given effect. However, in their submission the requirement so to do derived not from s 79(3) but rather by reason of the application of the principle enunciated in s 9(d) to the making of any determination under the Act.
44 The care plan to which s 80 refers is one presented to the Children’s Court by the Director-General. Care plans are governed by s 78 of the Act. Section 78(1) imposes an obligation on the Director-General to present a care plan to the Children’s Court in support of an order (other than an emergency protection order) for the removal of a child or young person from the care of his or her parents before final orders are made. Section 78(2) sets out the matters to which the care plan must refer in subparagraphs (a) - (e). The care plan is to include information as to the kind of placement proposed including details of interim arrangements pending permanent placement of the child.
45 I am not persuaded that it is necessary for a care plan to be before the Children’s Court prior to the making of an interim order allocating parental responsibility to the Minister or some other person. The obligation imposed upon the Director-General with respect to care plans requires that she present one to the Children’s Court before final orders are made. Section 80 operates to require as a condition of the making of a final order allocating parental responsibility that the Children’s Court give consideration to a care plan presented to it by the Director-General.
46 Pursuant to s 69 the Children’s Court may make interim care orders. Care orders are orders under chapter 5 of the Act for or with respect to the care and protection of a child or young person. Care orders include orders accepting undertakings, orders to attend therapeutic or treatment programs, orders for supervision, and orders allocating parental responsibility.
47 As Ms Reynolds observes in her written submissions, the finding that a child or young person is in need of care and protection is the ultimate issue in care proceedings and must be made before a final order accepting undertakings pursuant to s 73, a supervision order pursuant to s 76, as well as an order allocating parental responsibility pursuant to s 79 may be made. It is an issue that may be the subject of contest at the hearing of the application. I do not accept that before a care order may be made pursuant to s 69 allocating parental responsibility on an interim basis, the Court must find the child or young person to be in need of care and protection. Mr Singleton, realistically accepting the force of the submissions put against him on this issue, sought to draw a distinction between the requirements of s 79(1) which involves the making of a finding and the requirements of s 79(3), s 80 and s 81 which he contended were procedural in that they directed the Children’s Court to take into account certain matters. He maintained that these latter provisions were on any view to be considered prerequisites to the making of an order, including an interim order, allocating parental responsibility.
48 I do not accept that either the requirements of s 79(1) or s 79(3) or s 80 are to be made out before the Children’s Court may make an interim order allocating parental responsibility pursuant to s 69 or 70 of the Act. The power conferred by s 69 is to make interim care orders. A care order is an order for the care and protection of a child or young person being one of the orders provided by Chapter 5 of the Act. Before an interim care order may be made under s 69 it is necessary for the Children’s Court to be satisfied that it is not in the best interests of the safety, welfare or well-being of the child or young person that he or she remain with his or her parents or other persons having parental responsibility. Provided the Children’s Court is so satisfied, the power exists to make an interim care order allocating parental responsibility to the Minister (or to another suitable person).
49 I note that in Re Edward [2001] NSWSC 284 Kirby J at [52] favoured the view that s 70 of the Act admitted of interim orders varying or rescinding care orders outside the terms of s 90 (which confers power on the Children’s Court to rescind or vary care orders). I consider that his Honour’s reasoning in this respect supports the view to which I have come.
50 I do not hold that in making an interim order allocating parental responsibility it is necessary for the Children’s Court to be satisfied of the matters set out in s 79(3). However, in making an interim order, it is necessary for the Court to have regard, among other things, to the principle expressed in s 9(d) that in deciding what action it is necessary to take in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and to promote the child’s or young person’s development. Thus, before making an interim order allocating parental responsibility to the Minister consideration should be given to less intrusive interventions which may include allocating aspects of the parental responsibility to be the sole responsibility of persons other than the Minister and aspects of the parental responsibility to be exercised jointly by the Minister and other persons (s 81).
51 The matter was argued upon the basis that it was common ground that in neither instance did the Magistrate advert to the principle of the least intrusive intervention.
52 In the case of Fernando the transcript of the proceedings before the Children’s Court on 15 March 2001 is in evidence before me. The Magistrate received submissions concerning his powers to make interim orders. On behalf of the Department of Community Services and the father of the child he was invited to make an order placing the child in the care responsibility of the Director-General. At the conclusion of these submissions the Magistrate’s reasons are recorded in these terms:
“In my view, there is no power for the Court to make an order placing the child directly in the Director-General’s care as an interim order. Accordingly, I propose to make an order that the parental responsibility and all that goes with it should be allocated to the Minister”.
53 The Magistrate does not appear to have directed his mind to the question of whether an interim order allocating all aspects of parental responsibility to the Minister was the least intrusive intervention in the life of the child and his family consistent with the paramount concern to protect the child from harm and promote the child’s development. He was required by s 9(d) of the Act to apply this principle in deciding what, if any, interim order should be made.
54 In the proceedings involving Gabriel a transcript of the proceeding before the Children’s Court on 16 February 2001 is in evidence together with a transcript of the proceedings on 1 March 2001. On the first occasion the Magistrate also received submissions as to the nature of interim orders which might be made under the Act. On behalf of the Department of Community Services she was invited to place the child under the care responsibility of the Director-General. The child’s representative questioned her power do make such an order and went on to put “my understanding is that the interim order that is now made or virtually as a matter of course is that on an interim basis the child is placed under the parental responsibility of the Minister” (p.4). The Magistrate referred to s 69 noting that it allowed her to make interim orders. She expressed her satisfaction, having regard to the terms of s 69(2), that it was not in the best interests of the safety, welfare and well-being of Gabriel that he remain with either parent. She went on to make an interim order allocating parental responsibility to the Minister. The transcript records the Magistrate’s reasons in these terms:
- “I take the view that section 69,70, in particular section 69, allows me to make interim orders under section -
Mr Clarke: Section 81 your Worship.
Yes, 81, and I propose making an interim order vesting parental responsibility of the child in the Minister, because I am satisfied on the affidavit of Jason McDonald sworn – I withdraw that – affirmed 15 February 2001 and filed in the proceedings, it is not in the best interests of [Gabriel] – I withdraw that – it is not in the best interests of the safety, welfare and well-being of [Gabriel] that he should remain with either parent. Accordingly, I make that order.”
55 Although the transcript records Mr Clarke, who appeared for Gabriel, referring her Worship to s 81 of the Act it would seem that this was a mistaken reference to s 79 which makes provision for an order allocating parental responsibility to the Minister. There is nothing in the statement of her Worship’s reasons to suggest that she turned her mind to the issue of whether an interim order allocating all aspects of parental responsibility to the Minister was the least intrusive intervention in the life of the child and his family consistent with the paramount concern to protect the child from harm and promote the child’s development as she was required to do having regard to s 9(d) of the Act.
56 On 1 March 2001 when the proceedings concerning Gabriel came back before the Court the representative of the Department of Community Services sought to have the Court vary the interim order made on the last occasion and place the child in the care of the Director-General. The Magistrate inquired if there had been any change in circumstances. He was informed that there were none. In the light of this and in the absence of an application for leave to vary the interim order made on the previous occasion he declined to grant leave to make an application for variation of the order.
57 I do not accept the plaintiffs’ submission that in each case the Magistrate was not authorised by s 69 to make an order allocating parental responsibility to the Minister without being satisfied as to the prerequisites for the making of a final order allocating parental responsibility pursuant to s 79 and s 80 of the Act. Thus I am not of the view that the claim based upon jurisdictional error has been made good in either of the two sets of proceedings.
58 The jurisdiction to grant relief in the nature of certiorari quashing the ultimate determination of a court if that determination has been made upon the basis of error of law on the face of the record of the proceedings is provided by s 69(3) of the Supreme Court Act 1970 (“the SCA”). The record includes the reasons expressed by the Court for its ultimate determination (s 69(4) of the SCA). Priestley JA in the New Redhead Estate & Coal Co Ltd v New South Wales Coal Compensation Board [1999] NSWCA 464 observed that s 69(3) & (4) (which were inserted into the SCA following the decision in Craig v South Australia (1995) 184 CLR 163) have not been the subject of conclusive consideration by the Court of Appeal. In that case relief in the nature of certiorari was granted in respect of error of law on the face of the record in the context that neither party questioned the jurisdiction of the Court so to do.
59 The Act makes no provision for an appeal against an interim order of the Children’s Court made pursuant to s 69 or s 70 (s 91(1)). In these circumstances I am inclined to grant relief in the nature of certiorari quashing the orders in each case made by the Magistrate and remitting the proceedings in each case to the Children’s Court to be determined in accordance with law.
60 I should note a submission made by Mr McLachlan. He drew attention to the fact that the Minister was not a party to the proceedings involving Fernando. The same observation is to be made with respect to the proceedings relating to Gabriel. Section 87 of the Act provides, inter alia, that the Children’s Court must not make an order that has significant impact upon a person who is not a party to proceedings before the Court unless the person has been given the opportunity to be heard on the matter. In Mr McLachlan’s submission the order allocating parental responsibility to the Minister was bad since the Minister, not being a party in the proceedings below, had not been afforded an opportunity to be heard before it was made. It is sufficient to note that this point was not taken by the Minister. Mr Singleton submitted that as a mater of fact the Minister is aware that proceedings in the nature of care applications are before the Children’s Court on every sitting day. If she wishes to be heard in respect of one she may do so.
Declaration as to Care Responsibility
61 Since I am of the view that it is appropriate to grant the plaintiffs the relief sought in prayer two of their summons in each of the subject proceedings, namely an order quashing the determination of the Children’s Court placing the child under the parental responsibility of the Minister, it is necessary to turn to the plaintiffs’ contention that in this event by virtue of s 49 of the Act the Director-General has the care responsibility for the child until a contrary order is made by a court of competent jurisdiction. The plaintiffs seek a declaration in these terms in each case.
62 “Care responsibility” is defined in s 3 of the Act to mean the authority to exercise the functions specified in s 157 (this section has not to-date commenced however that is not relevant for present purposes). By reference to that provision it appears that “care responsibility” embraces the following:
- (a) Consent to medical and dental treatment, not involving surgery, for the child or young person on the advice of a medical practitioner or dentist,
(b) consent to medical and dental treatment involving surgery that a medical practitioner or dentist certifies in writing needs to be carried out as a matter of urgency in the best interests of the child or young person,
(c) correcting and managing the behaviour of the child or young person (subject to the regulations),
(d) giving permission to participate in activities, such as school excursions, that are organised for the child or young person, and
(e) making other decisions that are required in the day to day care and control of the child or young person.
63 Care responsibility involves a degree of responsibility for a child or young person falling short of that, which is encompassed by the concept of “parental responsibility”. The latter is defined in s 3 of the Act to mean all the duties, powers, responsibilities and authority, which, by law, parents have in relation to their children.
64 Both Fernando and Gabriel were removed without warrant pursuant to the provisions of s 43 of the Act. In the event that a child or young person is removed pursuant to the power conferred by s 43 the Director-General must apply to the Children’s Court at the first available opportunity, but no later than the next sitting day of the Children’s Court after the removal, for one or more of the following care orders (s 45(1)):
- (a) An emergency care and protection order,
(b) an examination and assessment order,
(c) any other care order.
65 On the matter coming before the Children’s Court the Director-General is required to explain why the removal of the child or young person without a warrant was considered to be necessary (s 45(2)). Notwithstanding the provisions of s 45(1) the Director-General is not required to apply for any order of the Children’s Court if she considers that no order is necessary, but she must explain to the Court at the first available opportunity why no care application was made (s 45(3)).
66 Central to the plaintiff’s submissions with respect to the declaration claimed in each case, is the construction of s 49 of the Act. Section 49 is in these terms:
- 49 Care of child or young person pending care proceedings
If a child or young person is removed from the care of his or her parent or parents under this Part or a warrant issued under section 233:
- (a) the child or young person is to be kept at a place approved by the Minister for the purposes of this section, and
(b) the Director-General has the care responsibility for the child or young person.
(iii) The Director-General or designated agency having the care responsibility for the child or young person may delegate that responsibility to a relative of the child or young person, an authorised carer or a person approved by the children’s Guardian.
(iv) Despite subsection (3), the Director-General may delegate the care responsibility for the child or young person on an interim basis to a person other than a person specified in subsection (3) but must use his or her best endeavours to delegate that responsibility to a person so specified as soon as is reasonably practicable.
(v) The exercise of the care responsibility be a person referred to in subsection (3) or (4) is subject to any direction given to the person by the Director-General or the designated agency that made the delegation.
67 In the plaintiff’s submission s 49(1) operates to confer upon the Director-General the care responsibility for a child or young person who is the subject of executive removal until an order inconsistent with the Director-General’s continued care responsibility is made by the Children’s Court.
68 The construction of s 49(1) of the Act for which the plaintiffs’ contend overcomes what in Mr Singleton’s submission is an otherwise anomalous result, namely, that no provision is made for the Children’s Court to vest the care responsibility for a child or young person in the Director-General.
69 Mr Singleton submitted that it would work an absurd result for there to be no power to place a child or young person under the care responsibility of the Director-General pending the final conclusion of care proceedings. The Children (Care and Protection) Act 1987 (“the former Act”) made provision for children to be placed in the care of the Director-General on an interim basis. In the plaintiffs’ submission, unless s 49(1) bears the construction for which they contend, the Children’s Court would be faced with a choice between returning a child or young person to the care of his or her parents, or allocating parental responsibility to the Minister on an interim basis. An order allocating parental responsibility to the Minister is said to be equivalent to an order for wardship under the former Act. It is the most extreme and intrusive form of order which the Children’s Court in the exercise of its jurisdiction with respect to the care and protection of children and young persons can make. An order of this character was submitted to be likely to inflame the situation in many cases, making the ultimate restoration of the child to his or her parents more problematic.
70 Mr Singleton noted that s 49(1) does not provide a terminus for the care responsibility vested in the Director-General. He acknowledged that one must be implied. In the light of the principles governing the administration of the Act, and in particular s 9(d), Mr Singleton contended that the appropriate terminus to be implied is that of an order made by the Children’s Court inconsistent with the continued care responsibility of the Director-General.
71 Both Ms Reynolds and Mr McLachlan submitted that s 49(1) did not operate as a default provision vesting care responsibility following executive removal in the Director-General until the making of an inconsistent order by the Children’s Court. Both contended that once the matter came before the Children’s Court pursuant to s 45 the Director-General’s care responsibility came to an end and the care of the child was thereafter the subject of such interim, or other, order as the Court may make.
72 I should note that Ms Reynolds and Mr McLachlan submitted that the Act made provision for a child or young person to be placed in the care responsibility of the Department of Community Services by reason of the Children’s Court’s power to vest care responsibility in a designated agency pursuant to s 49(2) of the Act. At the date the proceedings were argued s 139 of the Act had not commenced. It is to be noted that s 139 provides that a “designated agency” means, among other things, a department of the Public Service if the department is accredited for the time being in accordance with the regulations. Provision is made for the regulations to prescribe standards with which an applicant for accreditation must comply in order to be accredited as a “designated agency” (s 139(2)). The scheme of the Act, it was observed, contemplates that the Department of Community Services (provided it satisfies such requirements as may be mandated by the regulations) may be a designated agency for the purposes of s 49(2). The powers of the Children’s Court will include that of vesting care responsibility in the Department of Community Services in an appropriate case.
73 As Mr Singleton submitted, although for practical purposes there may be little to distinguish conferring the care responsibility upon the Department of Community Services, as distinct from the Director-General, the two are distinct entities. It remains, in his submission, notable that, absent acceptance of the contention that s 49(1) of the Act provides a default vesting care responsibility in the Director-General, no provision is made for the Children’s Court so to do.
74 Mr McLachlan contended that the Children’s Court does have the power to make interim orders placing a child or young person under the care responsibility of the Director-General. This was said to flow from the breadth of s 69 of the Act which confers a power to make interim care orders. Section 69 is in these terms:
- 69 Interim care orders
(1) The Children’s Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined.
(2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility.
Note . Section 49 makes provision for the care of children and young persons pending care proceedings.
75 “Care orders” are, relevantly, defined by s 60 to mean an order under Chapter 5 for or with respect to the care and protection of a child or young person. It was Mr McLachlan’s submission that the power to make interim “care orders” embraces any order that might be characterised as one providing for the care of the child as distinct from one of the care orders for which provision is made in terms in chapter 5 of the Act. I see no warrant for such a construction in the light of the definition of care order to which I have referred.
76 In Ms Reynolds’ submission it was not necessarily useful to contrast wardship orders under the former act with orders allocating parental responsibility under the new Act. I consider that there is force to this submission. Provision is made for aspects of parental responsibility to be allocated to the Minister leaving other aspects of parental responsibility as the sole responsibility of persons other than the Minister and for the exercise of aspects of parental responsibility jointly as between the Minister and other persons. A substantial measure of flexibility is available in structuring orders allocating parental responsibility to the Minister. Further, as Ms Reynolds observed, the Act introduces the Children’s Guardian (not all of Chapter 10 of the Act dealing with the Children’ Guardian has as yet commenced). Under s 181(1)(a) the Children’s Guardian is to exercise, subject to any direction of the Minister, the parental responsibility of the Minister for a child or young person for the benefit of the child or young person. The role of the Children’s Guardian with respect to promoting the best interests of children and young persons the subject of the Director-General’s care responsibility is a lesser one.
77 In support of her submission that s 49(1) of the Act does not operate as a default leaving care responsibility for children and young persons in the Director-General unless and until an inconsistent order is made, Ms Reynolds referred me to s 49(3). The Director-General is authorised to delegate the care responsibility for the child or young person to a relative, authorised carer or person approved the children’s guardian. In the event that the plaintiffs’ submission were accepted Ms Reynolds submitted that a child removed without warrant from his or her home with one parent might be placed by the Director-General in the care responsibility of another parent or relative without the first mentioned parent being informed of the matter. Such a situation might continue for a number of months before the final determination of the care application. In Ms Reynolds’ submission this would be inconsistent with the scheme of the Act which provides for prompt notification to the parents of a child the subject of a care application (s 64) and which contemplates that affected parties will have the opportunity to be heard in the proceedings thereafter.
78 One of the orders, which the Director-General may seek pursuant to s 45(1)(c), is an emergency care and protection order. Such an order places the child or young person in the “care and protection” of the Director-General. “Care and protection” is not defined for the purposes of the Act.
79 The scheme with respect to emergency care and protection orders provided by the Act is closely confined. Such an order may only operate for fourteen days. It may be extended on one occasion only and then for not more than a further fourteen days. The construction for which the plaintiffs’ contend would produce the result that while the Children’s Court may only make an order placing a child or young person in the care and protection of the Director-General for a maximum of twenty-eight days it might, by failing to make an inconsistent order, leave a child or young person subject to the care responsibility of the Director-General for many months until the hearing of the care application and the making of final orders.
80 Were s 49(1) to vest the care responsibility for a child or young person who has been the subject of executive removal in the Director-General until the making of an inconsistent order what function would be served by s 46 with the provision for emergency care and protection orders? Mr Singleton submitted that s 46 exists to provide a mechanism in cases where the Director-General perceives a short-term emergency to have arisen; following the death of the parent having the care of the child or cases where the Director-General became aware of a child in immediate risk, but where she had little information as to the background circumstances. In these cases it was submitted that the Director-General might apply for an emergency care and protection order to allow a fourteen day period to conduct an investigation. In the event that underlying problems were found such as to make it appropriate that the child not remain with his or her parents (or other persons having parental responsibility) the Director-General might then make application pursuant to s 61 of the Act for a care order. In the event that the Director-General was aware of the family situation at the time of executive removal the appropriate course is for her to make application for a care order pursuant to s 45(1)(c) of the Act.
81 In Mr Singleton’s submission, the making of an emergency care and protection order does not operate to terminate the operation of s 49(1) of the Act. An order placing a child or young person under the care and protection of the Director-General pursuant to s 46(1) was said to be complimentary and not inconsistent with the child being the subject of the Director-General’s care responsibility, pursuant to s 49(1) of the Act. Upon the lapse of the order providing for care and protection under s 46, it was contended that the Director-General’s care responsibility persists by reason of s 49(1) until a contrary order is made.
82 Mr Singleton was not able to point to any meaningful distinction between that which is embraced by “care responsibility” and “care and protection” save to submit that “care and protection” might import something more than “care responsibility” by reason of the inclusion of the element of “protection”. The construction of s 49(1) of the Act for which the plaintiffs’ contend seems to me to not sit well with the express provision made for emergency care and protection orders. It would seem unlikely that the legislature intended that orders placing children and young persons in the care and protection of the Director-General should be so carefully regulated and at the same time that the Director-General should have the care responsibility for children and young persons vested in her without limitation (subject to the power of the Children’s Court to make an inconsistent order) until the making of a final or other order.
83 After a care application is made and before that application is finally determined the Children’s Court has jurisdiction to make interim care orders pursuant to s 69(1) of the Act. Importantly, in seeking an interim care order an onus is conferred on the Director-General to satisfy the Children’s Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she remain with his or her parents or other persons having parental responsibility.
84 As I have observed, under s 70 the Children’s Court is given further power to make interim orders. Section 70 provides:
- 70 Other interim orders
The Children’s Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings.
85 Section 69 is deals with the Children’s Court’s power to make interim care orders after a care application has been made. Having regard to s 69(2) it would seem that s 69 is directed to applications in which the Director-General is seeking interim care orders which do not admit of the child or young person remaining with his or her parents or those having parental responsibility for him or her. An application for a care order of this character made pursuant to s 45(1)(c) would fall within the terms of s 69(1) together with applications for care orders made pursuant to s 61. In either event it is necessary for the Director-General to discharge the onus placed upon her pursuant to s 69(2).
86 In the plaintiffs’ submission s 69 provides a power for the Children’s Court to make interim orders following a care application made pursuant to s 61 of the Act. In cases involving executive removal of a child or young person no necessity arises for an interim order pursuant to s 69. The distinction to be drawn between cases of executive removal and applications for care orders made pursuant to s 61 was that in the former category of case the child or young person has already been removed by the time the matter comes before the Children’s Court, to this extent there has been a change in the status quo. The Children’s Court at this stage was said to be concerned with what is appropriate to the safety, welfare and well-being of the child against a background that the Director-General’s care responsibility for the child or young person might continue if that were an appropriate course or might be varied by the making of an interim order should the Children’s Court consider that to be appropriate.
87 Further, in the plaintiff’s submission, it was open to the Director-General to apply for an interim order pursuant to s 70 after an application for a care order had been made either pursuant to s 45(1) or s 61. There was no necessity to have recourse to an application for the making of an interim care order pursuant to s 69 and, thus, no necessity for the Director-General to discharge the onus imposed by s 69(2) of the Act. I am not persuaded that is so.
88 Section 69 makes provision for interim care orders after a care application is made and before it is determined. In seeking an interim care order after a care application has been made, being an order that does not admit of the child or young person remaining with his or her parents or the person having parental responsibility for him or her, I consider that it is necessary for the Court to proceed under s 69 and for the Director-General to discharge the onus imposed on her by s 69(2). This conclusion reinforces my view that s 49(1) does not operate to vest care responsibility in the Director-General until the making of an order inconsistent with that state of affairs by the Children’s Court.
89 Since I am not persuaded that in the absence of an inconsistent order made by the Children’s Court (or this Court) the care responsibility for Fernando or Gabriel remains in the Director-General by operation of s 49(1) it is appropriate for me to defer making orders quashing the orders made in each case in the Children’s Court until I have given the parties the opportunity of making submissions as to any consequential orders that may be appropriate. To this end the proceedings may be listed before me at 9.00am on any date convenient to the parties in the next two weeks.
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