Re Helen

[2010] NSWSC 1560

CITATION:	Re Helen [2010] NSWSC 1560
HEARING DATE(S):	13 May 2010
JURISDICTION:	Equity
JUDGMENT OF:	Ward J
EX TEMPORE JUDGMENT DATE:	13 May 2010
DECISION:	Until further order leave be granted for child to be detained at secure premises
CATCHWORDS:	Parens patriae jurisdiction
CASES CITED:	Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 DoCS v Y [1999] NSWSC 644
PARTIES:	Director General, Department of Family and Community Services and Minister for Family and Community Services (Plaintiffs)
FILE NUMBER(S):	SC 10/119429
COUNSEL:	Ms M England (Plaintiffs)
SOLICITORS:	I V Knight, Crown Solicitor’s Office (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

WARD J

THURSDAY 13 MAY 2010

2010/119429 RE: HELEN

JUDGMENT (Ex tempore)

1 HER HONOUR: This application is brought before me under the parens patriae jurisdiction. The scope of that jurisdiction in applications of this kind was reviewed by Austin J in DoCS v Y [1999] NSWSC 644 and by Brereton J in Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217. In Re: Thomas, his Honour analysed the jurisdiction in detail and was satisfied that the jurisdiction enabled the making of orders of a similar kind to the orders that are sought in the application before me. In particular, his Honour noted that the protection and promotion of the child's welfare lies at the heart of the parens patriae jurisdiction and that it is founded on the need to act for the protection of those who cannot care for themselves.

2 On the application I have read the affidavit of Jason Mark McDonald affirmed on 13 May 2010 and I have had the benefit of submissions from Ms England. The application has been brought before me ex parte on an urgent basis.

3 The application has been brought in relation to a child aged 14 years, who I will direct should be known in these proceedings only as “Helen”. Helen has been in detained placement since November 2007 and has been known to the Department since she was 10 weeks old. Her carers have expressed grave concerns in relation to Helen's welfare and in particular as to their inability adequately to protect her and to provide her with care and support, in circumstances where Helen's behaviour has become of increasing concern very recently.

4 I am told that there are three reasons for the urgency of the application. The first is that a suitable place for Helen in secure premises has only just become available. Details in relation to that secure residential care facility, XXXXX XXXXX XXXXX , are set out in Mr McDonald’s affidavit. XXXXX XX XXXXX X is a therapeutic facility with security personnel.

5 The second reason for the urgency of the application is that there are intensive health care issues with Helen. Helen suffers from insulin dependent diabetes mellitus and a sucrose deficiency. Her medical needs are unable to be met at present. She is highly resistant to attempts to manage her diabetes and responds with violence, aggression and absconding from care. She also has been diagnosed with an ADHD condition and is unable to take the medication necessary to deal with her ADHD condition due to the sporadic nature of the care. (I am told that that medication needs to be provided with some continuity.)

6 By way of example of Helen's conduct I am told that by 26 March 2010 out of 145 days of her placement she had absconded on 104 occasions, that she does not always take her diabetes management kit with her while away and therefore there is a serious risk that she receives no treatment. The ability to manage her diabetes at present in the opinion of the medical doctors is extremely compromised. The only option that the Service considers there is, in order to ensure Helen’s continued medical care, is for her to be detained. If untreated, there is a risk that the lack of medical care will lead to physical injury (such as the amputation of a limb) and could potentially be fatal to her.

7 There is a concern that Helen's behaviour is escalating. This is the third reason for the urgency of the application. The Department is greatly concerned that the risk factor of behavioural issues is escalating. Mr McDonald has deposed to clear evidence that Helen's behavioural and emotional disturbance has been reported from early childhood and it appears in the Department's view and concern at her escalating behavioural issues. There has been an increased number of incidents recorded by Community Services in the last 12 months in relation to Helen's conduct and she has exhibited violence and aggression. Her carer has had two injuries recorded, including broken bones. There is also a concern that Helen may be proposing to abscond on the coming weekend with an older man, in circumstances where I am told Helen has a tendency to abscond more on weekends than during the week.

8 The advantage of the facility at XXXXX XXXXX XX is that it enables security staff. It will have a registered nurse available in the initial period of placement to administer Helen's insulin and engage with her to be able to develop a new behaviour plan.

9 I appreciate that great caution is required to be exercised in the parens patriae jurisdiction and in particular in circumstances where an order of this kind would involve serious interference with Helen's liberty. However, I am satisfied that orders of this kind are not only within the powers of the court, they are in the best interests of protecting Helen’s safety and welfare and addressing the serious concerns for her welfare in relation to the risk that her behaviour places her, particularly where her foster carers are unable at present to meet her medication needs. (One of the other advantages of the facility is the ability for Helen to receive more consistent education than she has been able to receive due to her behaviour to date.)

10 I make orders in terms of the short minutes of order which I will initial and place with the papers. I note that those orders include an order that there be no publication of any matters that would tend to identify Helen and that the proceedings are to be known as Re: Helen.

11 I note that those orders also provide for Helen to be separately represented. I request that the Legal Aid Commission arrange that.

12 I also order that there be no publication of any transcript other than using the word “Helen”. I add to the orders made order 16, a prohibition on publication of the transcript of these proceedings to anyone other than the parties’ legal representatives and that the transcript will refer to the proceedings as Re: Helen and the child as Helen.

13 I stand the matter over and make the summons returnable at 4pm on Thursday 27 May 2010. I have given the parties liberty to apply on 24 hours notice. If representation has not been adequately arranged by then please contact my associate.

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