Re Jerry
[2018] NSWSC 2006
•21 December 2018
Supreme Court
New South Wales
Medium Neutral Citation: Re Jerry [2018] NSWSC 2006 Hearing dates: 21/12/2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Equity Before: McDougall J Decision: Secure accommodation orders made.
Catchwords: CHILDREN - parens patriae jurisdiction - secure accommodation orders – where evidence justifies the making of orders on an interim basis – orders made. Cases Cited: Re Thomas [2009] NSWSC 217 Category: Procedural and other rulings Parties: Secretary, Department of Family and Community Services (First Plaintiff)
Minister for Family and Community Services (Second Plaintiff)Representation: Counsel:
Solicitors:
M Anderson (Plaintiffs)
K Kelso (Separate Representative)
Crown Solicitor (Plaintiffs)
Legal Aid NSW (Separate Representative)
File Number(s): 2018/393840
Judgment
-
HIS HONOUR: This is an application for secure accommodation orders in respect of the young person who will be known by the pseudonym "Jerry". Jerry is about 16 years and four months old. He has been under the parental control of the Minister for Family and Community Services for more than seven years. The evidence paints a very sad and disturbing picture of Jerry's mental health issues, personality, and propensity to self-harm. It is patently obvious that if nothing is done, he will be a risk to himself and others.
-
Jerry had been living in accommodation supported by full-time carers. However, the agency providing that care has found itself unable to continue to do so. Another agency has been found which is prepared to take on his care. It will be some time before suitable premises can be obtained and modified (the modifications being necessary, among other things, because of Jerry's propensity to self-harm) and the carers can be trained.
-
Jerry has been in the secure accommodation programme known as Sherwood House for a few days already. Although there is no evidence as to how he has reacted, I was informed from the bar table that he is said to be "very settled". However, it seems to me, there can be little doubt that if alternative premises can be found and made safe for him, and if properly trained carers can be found, it will be better both for Jerry and for the other inhabitants of Sherwood House for him to be accommodated elsewhere. The real problem is: what to do until that other accommodation can be made safe and those other carers can be trained.
-
The power of the Court to make secure accommodation orders is well established. There are numerous decisions of single judges, dating back to the decision of Brereton J in Re Thomas [1] . As his Honour identified (and subsequent decisions have confirmed), the power is derived from the Court's parens patriae jurisdiction.
1. [2009] NSWSC 217.
-
In the ordinary case, the Court makes secure accommodation orders so that children or young persons can be supported and educated, in a safe and secure environment, in the hope that they may escape the cycle of crime, violence, sexual abuse and other misfortunes that have attended them. This case is a little different, for the reasons I have indicated. Nonetheless, there is no doubt that the Court's parens patriae power is available. In circumstances where there is a place for Jerry at Sherwood House, and where, so it seems, he has not been difficult to accommodate or the cause of distress or harm to the others who reside there, it seems to me that the making of the orders is justified.
-
Having said that, the risk of harm to others cannot be forgotten. Jerry has an unfortunate criminal history for one his age. It involves both incidents of property damage and incidents of violence. He has been before the Children's Court on more than one occasion, and has been dealt with for his transgressions. It would appear that because of his medical condition, he has a propensity to violence which his substantial physical size allows him to exercise. The evidence suggests that Jerry has a significant history of self-harm and suicidal behaviour, and that this may be related to his diagnosed schizoaffective disorder and his other diagnosed problems. There does not seem to me to be any point in going further into the detail because, as I have sought to indicate, it is clear that something needs to be done to keep Jerry and the community safe until such time as his new accommodation and new carers are ready to receive him.
-
Although the orders that are sought are in the usual form, and provide for the matter to come back before the Court early in the new term, there is reserved liberty to apply. It seems to me that if the new arrangements that I have described are ready and if it seems appropriate to do so, application could be made, either on behalf of the plaintiffs or, indeed, on Jerry's behalf, for a termination or variation of the orders that I am about to make. If those matters do not come to fruition before the matter comes back before the Court, the judge before whom the matter returns will be able to reconsider it in the light of further evidence as to Jerry's progress through the Sherwood House programme and as to the availability of alternative accommodation for him.
-
For those reasons, it is, as I have indicated, appropriate to make the secure accommodation orders sought. The formal orders, which include not only an order giving leave to apply on 24 hours' notice, but also the usual orders for reporting and the like, are set out in what are now paragraphs 1 to 10 of the short minutes of order that have been provided. It is appropriate to make those orders and I do so. The short minutes have been initialled by me and dated today's date. The orders include one for entry forthwith.
**********
Endnote
Decision last updated: 21 January 2019
0