Re Jules

[2008] NSWSC 1193

CITATION:	Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193
HEARING DATE(S):	2 & 15 September 2008
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	2 September 2008
DECISION:	The Court has the statutory equivalent of its former inherent parens patriae jurisdiction in respect of all children, by operation of Family Law Act and Cross-Vesting Act. A medical treatment order is in substance a request and consent, in place of a parent’s, for treatment of a child. Although some steps can be taken in the parens patriae jurisdiction without making the child a ward of the Court, such a medical treatment order is founded on an assumption from the parent of part of at least some aspect of parental responsibility. Interim wardship order and parental responsibility orders discharged. Summons dismissed.
CATCHWORDS:	CHILDREN – PARENS PATRIAE – medical treatment orders - application to discharge interim orders making child a ward of the Court and delegating parental responsibility to the Director-General, Department of Community Services – where child was born with high risk of contracting Hepatitis B from mother – where parents refused vaccination and absconded with child – where vaccination unlikely now to be effective but Director-General seeks that child be presented for medical examination – extent and nature of inherent parens patriae jurisdiction – effect of (CTH) Jurisdiction of Courts (Cross-Vesting) Act and (CTH) Family Law Act 1975 on inherent parens patriae jurisdiction – whether child should be made a ward of the Court before orders can be made – nature of medical treatment order – whether the Court can order police officers to recover child - PROCEDURE – CHILDREN – CLOSED COURT – whether proceedings involving exercise of parens patriae jurisdiction should be heard in closed court - CONTEMPT – where parents apparently deliberately failed to present their child for vaccination pursuant to court orders – whether matter should be referred to Attorney General for prosecution of contempt – whether prosecution in the interest of the child – whether prosecution in the public interest – relevant considerations – where Director-General of the Department of Community Services does not press for prosecution
LEGISLATION CITED:	(NSW) Children (Care and Protection) Act 1987 (NSW) Civil Procedure Act 2005, s 71C (CTH) Family Law Act 1975, s 67Q (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987
CATEGORY:	Principal judgment
CASES CITED:	B & B (1997) 21 Fam LR 676; (1997) FLC 92-755 Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 In re L (An Infant) [1968] P 119 K v Minister for Youth and Community Services [1982] 1 NSWLR 311 L v L [1969] P 25 Mulhall v Hartnell (1988) 91 FLR 240; (1988) 12 Fam LR 361; (1988) FLC 91-947 Re Elm [2006] NSWSC 1137; (2006) 69 NSWLR 145 Re "N" (Infants) [1967] Ch 512 Re X (a Minor) [1975] 2 WLR 335 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 Vaughan v Vaughan (NSWSC, Powell J, 27 February 1979, unreported) Wellesley v Wellesley (1828) 2 Bli NS 124 Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27
PARTIES:	Director-General, Department of Community Services (plaintiff) Names of defendants suppressed
FILE NUMBER(S):	SC 4339/08
COUNSEL:	Mr I Bourke (plaintiff) Defendants in person (15 September 2008 only)
SOLICITORS:	Crown Solicitor (plaintiff) N/A

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

BRERETON J

Tuesday, 2 September 2008

4339/08 Director-General Department of Community Services; Re Jules

JUDGMENT (ex tempore)

1 HIS HONOUR: Jules – not his real name – was born on 19 August 2008 and so is now just 14 days old. His mother is a carrier of the Hepatitis B virus. Compelling expert medical evidence establishes that Jules was at risk of contracting the Hepatitis B virus intrapartum or by vertical infection from his mother, and then of himself becoming a chronic Hepatitis B carrier. That evidence also indicated that the risk of his acquiring chronic Hepatitis B was between 10 and 57 per cent if not vaccinated, and that if he did acquire such virus at around the time of birth, he was at a 90 per cent risk of developing chronic Hepatitis B infection. The evidence further indicated that in more than 25 per cent of carriers, chronic active hepatitis would develop, and up to 25 per cent would die prematurely of cirrhosis of the liver or cancer of the liver. The evidence of the same experts established that vaccination of babies born to mothers who were Hepatitis B carriers produced a 92 per cent reduction in the risk of developing hepatitis, and that there were no proven long term harms arising from vaccination – the reported risks being “sore at the injection site” (5 per cent) and “fever, usually low grade” (between 0.6 and 3.7 per cent). Where ranges are given in the above figures, that is because different studies have produced different outcomes. There is, therefore, compelling medical evidence that the risk of transmission of Hepatitis B to Jules and the risk to his long term health if not vaccinated substantially outweighs the risk of any potential rare harmful effects.

2 Medical opinion recommended that Jules receive a Vitamin K injection and be monitored for hypoglycaemia (low blood glucose). There was evidence that Jules is at a low (zero to 0.44 per cent) risk of Vitamin K deficiency bleeding, and a 20 in 100,000 risk of late Vitamin K deficiency bleeding, which would be reduced to negligible by a Vitamin K injection at birth. Because Jules was born small for gestational age, he is also at a higher than ordinary risk of low blood glucose levels. There is evidence of a policy at the hospital at which Jules was born to monitor blood glucose levels of at risk infants, because infants with low blood glucose levels are at risk of brain damage. This monitoring involves a heel prick sample of blood approximately three times in the first one hour after birth. It facilitates identifying a need for treatment of infants identified as having low glucose levels.

3 Jules' parents did not agree with any of the treatments recommended. The mother told the hospital that any decisions about vaccinations were to be made by the father. The father declined to consent to any vaccination, asserting that a previous child had not been given the Hepatitis B vaccination at birth. It appears that the father's concerns are related primarily to the aluminium salts used in the vaccine, and the potential impact of a standard vaccine on a smaller than standard baby. However, the medical evidence is that there is no consistent evidence that aluminium salts in vaccines cause any serious or long term adverse effects, and that the father's assertions and concerns are unsupported by medical opinion and experience.

4 On 21 August 2008, when Jules was two days old, the plaintiff Director-General of Department of Community Services (“the Director-General”) approached Barrett J, sitting as Duty Judge, for a range of orders – but ultimately, and most importantly, one authorising the Director of Medical Administration of the relevant hospital to administer Hepatitis B vaccine, a Vitamin K injection and to monitor blood glucose levels. Barrett J made orders ex parte suppressing publication of anything that would identify or tend to identify the child except for the purpose of the proper conduct of the proceedings; that the proceedings be heard in closed court; giving the child the pseudonym “Jules”; obliging the parents to present the child to the nominated hospital (or such other hospital as may be nominated by the Director-General or her delegate) by 11.59pm on 21 August and, in default, empowering the Director-General to take custody of the child and present him to the hospital; and authorising the hospital's Director of Medical Administration to carry out, by any qualified member of staff or visiting medical practitioner, the administration of Hepatitis B vaccine and ancillary treatment. His Honour did not make orders in respect of a Vitamin K injection or blood glucose monitoring.

5 Jules’ parents did not bring him to the hospital in compliance with those orders, and although the orders were served at their address and other steps were taken to notify the parents of them, and although evidence of subsequent contact suggests that the parents were at least to some extent aware of the orders, they have never been formally and personally served on them. On 22 August 2008, the Director-General approached me as Duty Judge, with a motion filed in Court that day, seeking orders that the parents present Jules to the hospital forthwith; that all officers of the New South Wales Police Force be authorised to stop and search vehicles and enter and search premises for the purpose of finding Jules, to take custody of him and present him to the Director-General; and authorising the hospital to administer the Hepatitis B vaccine.

6 Orders for presentation of the child at the hospital and authorising administration of the vaccine having already been made by Barrett J, it was not necessary then for me to consider in great detail the merits of those orders. However, the evidence to which I have referred clearly shows why it was in the interests of Jules that he receive the Hepatitis B vaccine. The Director-General did not at that stage press for any order in respect of a Vitamin K injection or blood glucose monitoring.

The parens patriae jurisdiction of the Supreme Court

7 The application was founded on the Court's inherent jurisdiction as parens patriae to safeguard and oversee the welfare of those who are unable to attend to their own welfare and, in particular, children. This jurisdiction was examined by Austin J in Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644. All that was necessary to his Honour's decision in that case was that the parens patriae jurisdiction was unaffected by the referral of powers to the Commonwealth in its application to children already in care under the (NSW) Children (Care and Protection) Act 1987 – although his Honour did observe, obiter, that it was his Honour's view that the whole of the parens patriae jurisdiction of the Court with respect to the wardship, custody and care of children was unaffected by Part 7 of the (CTH) Family Law Act 1975 (at [95]-[97]).

8 Whether or not that observation is correct is unnecessary to determine because even if, in respect of children not already in care, the jurisdiction of the Court was affected by the referral of powers to the Commonwealth and the Commonwealth’s exercise of those powers through the Family Law Act, this Court now enjoys all the jurisdiction of the Family Court of Australia as a result of (CTH) Jurisdiction of Courts (Cross-Vesting) Act 1987, including its powers in relation to children [Mulhall v Hartnell (1988) 91 FLR 240; (1988) 12 Fam LR 361; (1988) FLC ¶91-947 (Young J); Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27, [37]-[48] (Brereton J)]. Accordingly, either (as Austin J thought) because the parens patriae jurisdiction of this Court survives unaffected by the referral of powers to the Commonwealth and Part 7 of the Family Law Act, or (as Young J and I have held) because this Court shares with the Family Court the statutory equivalent of the parens patriae jurisdiction under Part 7 of the Family Law Act, this Court may make orders in connection with the welfare of children in/or analogous to the parens patriae jurisdiction, whether or not they are children of a marriage.

9 That jurisdiction is admittedly a wide one, and it is not limited to circumstances in which the child has been made a ward of the Court. Thus, in Re N (Infants) [1967] Ch 512, an injunction was granted in the inherent jurisdiction for the protection of an infant, notwithstanding that the child was not a ward of the Court, as in that jurisdiction wardship was the result of, and not the ground for, the exercise of the Court's inherent jurisdiction. As Stamp J said (at 531):

In my judgment, this court, before 1949, had jurisdiction to make an order for the protection of an infant before any other wardship proceedings had commenced. No doubt the effect of such an order usually, if not always, would have been to make the child a ward of court and, no doubt, by the effect of the Act of 1949 this will no longer be the result. Wardship was the result of and not the ground for the exercise of the jurisdiction ...

10 In that case, the father of two children, who had removed them from their school in Switzerland to Australia, was ordered to return them to the school or bring them into the jurisdiction of the English Court. No wardship order had been or was then made. But no exercise of parental responsibility in place of a parent was involved; the Court exercised its jurisdiction to grant an injunction to protect the person of the infant before proceedings were commenced, just as it could grant an injunction to protect an infant’s property before commencement of proceedings.

11 In In re L (An Infant) [1968] P 119, it was held that in proceedings relating to the custody of a child, a judge of the Divorce Division had, pursuant to the Judicature Acts, the jurisdiction of a judge of the Chancery Division in wardship proceedings, including the power to order that the child undergo blood testing for paternity. All the adults involved – the mother, her husband and the co-respondent – consented to paternity testing. Lord Denning MR explained (at 156) the derivation of the parens patriae jurisdiction from the Crown's right and duty to take care of those who are not able to take care of themselves, which power was delegated to the Lord Chancellor, who exercised it through the Court of Chancery (in this State, the Equity Court). Although, as his Lordship pointed out, the child was usually made a ward of the Court, with the consequence that thereafter no important step in the child's life could be taken without the Court's consent, "that was only machinery". His Honour further observed (at 156-7):

Even if there was no property and the child was not a ward of court, nevertheless the Court of Chancery had power to interfere with the protection of the infant by making whatever order may be appropriate. That was made clear by Lord Cottenham LC in In re Spence (1847) 2 Ph 247, where the infants were not wards and there was no property. Lord Cottenham said:
I have no doubt about the jurisdiction. The cases in which this court interferes on behalf of infants are not confined to those in which there is property. … This court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae , and the exercise of which is delegated to the Great Seal.
This wide jurisdiction of the old Court of Chancery is now vested in the High Court of Justice and can be exercised by any judge of the High Court. As a matter of convenience, the jurisdiction is exercised by making the child a ward of the court and putting it under the care of a judge of the Chancery Division. But that is only machinery. If a question arises as to the welfare of a child before any judge of the High Court, he can make such order as may be appropriate in the circumstances.

12 In L v L [1969] P 25, Sir Jocelyn Simon P, granted an injunction restraining a husband from removing the children of the family from the wife's custody, holding that as the application arose out of and was incidental to prospective divorce proceedings the Court had jurisdiction to grant the injunction sought, relying in part on what Stamp J had said in Re N to the effect that wardship was the result of and not the ground for the exercise of the jurisdiction. His Lordship said (at [27F]):

The ground was the need to protect infants (by injunction if necessary), the court exercising by delegation the sovereign’s power as parens patriae. This suggests that the Court of Appeal in Des Salles d’Epinox v Des Salles d’Epinox [1967] 1 WLR 553 was not intending to advert to cases where an injunction is required for the protection of an infant; and my instant decision to assume jurisdiction is not meant to go beyond such cases.

13 In this State, in K v Minister for Youth and Community Services [1982] 1 NSWLR 311, Helsham CJ in Eq referred to those cases in holding that a person does not have to be made a ward of the Court before the jurisdiction can be exercised (at 323). That was in circumstances where a child, who was a ward of the Minister, by her next friend and mother, applied for an order permitting her to have an abortion to which the Minister had declined to consent. His Honour ultimately ordered that the Minister give all necessary consents for the purpose of enabling the child temporarily to absent herself from the home in which she was an inmate for the purpose of receiving medical treatment from a particular doctor for the purpose of terminating her pregnancy and that the child return to the specified home and the care of the Minister as soon as reasonably possible thereafter. His Honour did not purport to give consent in loco parentis, but ordered that the Minister, who had parental responsibility, give all requisite consents.

14 Wide as the parens patriae jurisdiction is – indeed, it has been said that no limit has ever been set to it and that it extends as far as is necessary for the protection and education of children [Wellesley v Wellesley (1828) 2 Bli NS 124, 136-137; Re X (a Minor) [1975] 2 WLR 335, 342; K v Minister for Youth and Community Services, 326] – I was concerned that the Court did not, at least in its parens patriae jurisdiction, have power to make the order sought conferring authority on the officers of the New South Wales Police Force to search and take custody of the child – a concern which was subsequently confirmed by reference to the judgment of Powell J in Vaughan v Vaughan (NSWSC, Powell J, 27 February 1979, unreported), in which a similar order had been sought in aid of a writ of habeas corpus, but His Honour explained that the Court could not simply authorise police to do things that they were not otherwise authorised to do in the absence of such statutory provisions as empowered the Family Court, under the then provisions of the Family Law Act, to issue a warrant to police, and moreso where the persons sought to be so authorised were not parties to the proceedings. The observations of Powell J in Vaughan v Vaughan confirm my view that the parens patriae jurisdiction does not empower the Court to confer authority on others – such as medical practitioners – in respect of a child, although it can assume, and delegate, parental responsibility or aspects of it.

15 The parens patriae jurisdiction is, of its nature, one that involves the Court assuming parental responsibility in part or in whole in respect of a child, where those otherwise entrusted with that responsibility are found by the Court not to be exercising it – or not to be able to exercise it – in the best interests of the child. The Court respects the autonomy of the parents and will interfere only to the minimum extent necessary, respecting the wishes of the child and the wishes of the parents. As Helsham CJ in Eq said in K v Minister for Youth and Community Services (at 326F):

I am conscious of the desirability of permitting the Minister to exercise all his powers as guardian without unnecessary interference of the court. The same is true of any guardianship situation. No doubt the occasions will be rare when the necessity to supervise his actions will prompt the court to intervene. When they arise this Court must see that such steps as it considers to be in the interests of the welfare of the child must be taken, whatever may be the views of others in relation to them.

16 In exercising this jurisdiction, the Court endeavours to act as would a wise parent. Traditionally, and typically, the Court assumes parental responsibility in such a case by making a child a ward of the Court. When it does so, the powers otherwise exercisable by a parent in respect of a child are vested in the Court; no significant step in connection with the child can be taken without the consent of the Court; and the Court may in place of the parents make those decisions which it considers appropriate in the best interests of the child.

17 The cases to which I have referred suggest that the Court can perform at least some of its parens patriae functions without making the child a ward of the Court. However, none of those cases involved the giving of consent to medical treatment in lieu of parental consent. The practice appears to have developed of seeking and making orders that purport to "authorise" medical practitioners to treat a child. This practice, in my view, is an unfortunate one. As Vaughan v Vaughan illustrates, the jurisdiction of the Court does not extend to allowing it to cloak with legal authority those who do not otherwise have it, unless as an aspect of parental responsibility assumed or delegated by the Court. Ordinarily, the power to request and consent to medical treatment on the part of a child is a power vested in each of the parents as an aspect of parental responsibility, and that is one of the powers which passes to the Court if, by making the child a ward, it assumes parental responsibility.

18 When the Court permits medical treatment of a child, it exercises a power that would otherwise be exercisable by a parent of the child, to request and consent to medical treatment. It does so as an exercise of parental responsibility, not as a conferral on the medical practitioner of some power or authority that would not otherwise exist, or a delegation of parental responsibility to the medical practitioner. It is an authorisation only in the same sense that it might be said that, when a parent requests a doctor to treat a child, the parental consent might be said to be an authorisation; more accurately, it is a request for and consent to treatment, rather than an authorisation. Another way of looking at it is that, the Court in place of a parent having consented to the treatment, it is lawful for the medical practitioner to perform the treatment, the parents’ refusal of consent being beside the point once the Court has given its own consent – just as it is sufficient that one parent consents, each having parental responsibility and the ability to consent, even if the other does not [B & B (1997) 21 Fam LR 676, 729-730; (1997) FLC ¶92-755, 84,216-84,217; Re Elm [2006] NSWSC 1137; (2006) 69 NSWLR 145, [19]].

19 It may be observed that this concept of "authorising" treatment appears to derive from Marion’s case [Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218], but that case involved a quite different issue. Marion’s case established that there were some procedures – including compulsory sterilisation – the approval of which falls outside the ordinary scope of parental authority and requires the approval of the Court as parens patriae. In other words, there are some decisions relating to children that are so grave that they are not within ordinary parental responsibility, but are reserved the parens patriae. In Marian’s case, the Court “authorised” the procedure (where the parents already supported it), but it did not purport to confer authority on any specific person or medical practitioner to perform the treatment. The “authorisation” in this context was an expression of the consent of the Court as parens patriae to the procedure.

20 Because “authorising” medical treatment in the way sought in the present case involves an assumption of parental responsibility by the Court from parents to that extent, it seems to me preferable, though not in every case essential, that the basis on which the Court is acting is made clear, by making the child a ward of the Court, at least on an interim basis. It was first for that reason that on 22 August I determined that the child should be made a ward of the Court until further order. However, I delegated parental responsibility to the Director-General. That delegation of parental responsibility to the Director-General was a delegation of all those rights, powers, authorities and responsibilities that a parent has in respect of a child and, in particular, was sufficient to enable the Director-General to request and consent to medical treatment for the child –including the Hepatitis B vaccination.

21 A second reason for making a child a ward of the Court and giving parental responsibility to the Minister was that while, as I have foreshadowed, this Court could not in its inherent jurisdiction make an order authorising the New South Wales Police to search vehicles and premises, and take the child and deliver him to the Director-General, as Powell J mentioned in Vaughan v Vaughan, Family Law Act, s 67Q, gives statutory authority for recovery orders, which include orders to that effect. The difference between the position which pertained before me and that which confronted Powell J in 1979 is the intervention of the Jurisdiction of Courts (Cross-Vesting) Act, which now gives this Court the power to make such orders under the Family Law Act. By the conferral on the Director-General of parental responsibility, the Director-General became a person in whose favour a recovery order under Family Law Act, s 67Q, could be made. Accordingly, having ordered that until further order the child be a ward of the Court and that the Director-General have parental responsibility, I also made a recovery order pursuant to Family Law Act, s 67Q, that the child be delivered to the Director-General and that all officers of the Australian Federal Police and New South Wales Police be authorised to stop and search vehicles, and enter and search premises, for the purpose of finding and recovering the child and delivering him to an officer of the Department. I reserved liberty to apply, and I also directed that there be endorsed on the order notice to the parents that should they wish to apply urgently to vary or discharge the order, they were to telephone the court security desk and ask for the Equity Duty Judge.

22 No such application was made, and when the matter returned before the Court on 25 August, neither the parents appeared nor had the child been found. The proceedings were then adjourned to 26 August.

Proceedings in closed court?

23 On 26 August, I revoked the order previously made that the proceedings be heard in closed court.

24 While (NSW) Civil Procedure Act 2005, s 71C, provides that the business of the Court in relation to any proceedings may be conducted in the absence of the public if it concerns the guardianship, custody or maintenance of a minor, that is not to say that such business must be conducted in the absence of the public. Again, a practice seems to have developed of practically invariably making an application, in this type of proceeding, that it be heard in closed court, and it seems that those orders are at least very frequently, if not invariably, made. In my view, great caution is required before determining that proceedings, even of this type, should be conducted in closed court. It is one thing to make an order, as has been done in these proceedings (and there is no suggestion to the contrary) prohibiting the publication or disclosure of any information that would tend to reveal the identity of a party or a child, but it is quite another to order that the proceedings be conducted effectively in secret. The issues which typically arise in this type of case – whether they involve blood transfusions, vaccinations, compulsory treatment for anorexia nervosa, or the manifold other issues that arise – are generally of significant public interest, not merely out of curiosity but because all parents and the community as a whole have deep and abiding interest in the welfare of children. Proceedings such as these have a significant informative and educative function. It is important that what the Court does in this field be open to public knowledge, information and scrutiny.

25 Proceedings in the Family Court of Australia – in which there is a large amount of litigation concerning the welfare, custody and guardianship of children – are not heard in closed court, although they are protected by a statutory prohibition on publication that would identify the parties. Adoption proceedings are required to be heard in closed court by the particular legislation which applies to adoptions, but traditionally special considerations of confidentiality have applied to them. I do not see why proceedings in the parens patriae jurisdiction, including for medical treatment orders, should as a general rule be heard in closed court. There may no doubt be some cases in which that course is appropriate, but ordinarily sufficient protection of the child will be achieved by a non-publication order of the type to which I have referred.

Application to discharge orders

26 On 26 August, the Director-General sought the dissolution of the recovery order and the order authorising the Hepatitis B vaccination. In circumstances where the medical evidence did not support any continued benefit from the vaccination after seven days of age, and it seemed that continuation of that order and the recovery order might deter the parents from coming out of hiding, I acceded, albeit with some reluctance in the circumstances, to that application. The medical evidence, to the effect that there was no continuing ongoing benefit in a vaccination after seven days, provided a strong basis for doing so.

27 Today, the Director-General seeks a discharge of the interim wardship and parental responsibility order, but a mandatory injunction that the parents present the child to the hospital for the purposes of medical examination and assessment, and authorisation for the Director of the hospital to conduct such an examination and assessment, and such procedures and treatment as is considered on medical advice proper or desirable in the interests of the child. The Director-General puts her application on the basis that reducing the apparent scope of the Director-General's authority and responsibility may encourage the parents to come out of hiding and co-operate.

28 As I have foreshadowed, the conferral on the Director-General of parental responsibility, albeit on an interim basis, gives the Director-General all necessary authority to request and consent to medical examination assessment or treatment of the child which a parent would otherwise have had. The Director-General may give that consent and the medical practitioners may act on it, notwithstanding that the parents decline to do so. I do not see any need to make any further or more specific order in that respect. A grant of parental responsibility is a grant of just that. The orders sought, in reality, do not narrow the scope of the Director-General's authority in that respect, because proposed order 7 would still confer authority to consent to such treatment of the child as is considered proper or desirable.

29 So far as the wardship order is concerned, again so long as the Director-General is to have responsibility for medical assessment and treatment of the child, I think it preferable that the basis on which the Court is acting be made clear by the child being and remaining a ward of the Court.

30 I am most disinclined to accede to the proposition that by putting themselves above the law, the parents can effectively bring about a position where the Court is compelled to retreat from the position it adopted in the best interests of the child. Moreover, it seems to me, the parents having, prima facie – and I hasten to add they have not yet put their case before the Court, and if they do that might well change the position –acted in a manner contrary to that which the Court has determined to be in the best interests of the child, the Court should not withdraw from the position that the child should be a ward of the Court, unless and until the parents demonstrate that they are appropriate persons to have and to be entrusted with parental responsibility. Jules should remain a ward of the Court, unless and until the parents come forward and persuade the Court that they are appropriate persons to have parental responsibility for him.

31 Against that background, I do not think that making any of the other orders sought by the Director-General today would advance the position. Any question of ongoing or further medical examination or treatment is already entrusted to the Director-General by the grant of interim parental responsibility but, if in doubt as to any particular procedure, the Director-General is always able to seek the guidance of the Court.

32 I therefore decline to make the orders in the Notice of Motion filed in Court today.

33 I adjourn the proceedings to 15 September 2008 at 9.30am before me. All parties have liberty to apply on one hour's notice by arrangement with my Associate.

[The matter returned before his Honour on 15 September 2008. On this occasion, the parents of Jules appeared. His Honour delivered the following ex tempore judgment]

Monday 15 September 2008

34 The background to these proceedings is set out in my judgment given on 2 September 2008.

35 Today, the parents have appeared before the Court, having been in contact with officers of the Department of Community Services over the last week or so. After some discussions between the parties on 8 September, arrangements were made for the child to have a medical examination, which took place on 9 September, at which Professor Osborne expressed the view that he was pleased with the child's progress; that he was healthy and well and putting on weight; and that screening for Hepatitis B was pointless at this stage and should occur when the child is one year old. The parents have indicated that they will co-operate with those arrangements in a year's time.

36 The Department says that it entertains no present concerns, from the welfare perspective, for the child. I must say I come to that conclusion with hesitation, because these parents having once gambled with their child's life and future welfare – despite powerful medical advice and the orders of the Court – one can have little confidence that in a similar situation they would not do so again. Nonetheless, in circumstances where the Department has indicated that it has no present concerns and will retain a monitoring role, I will accede, not without reservation, to the application to discharge the wardship and parental responsibility orders.

37 The other question is whether I should refer the matter to the Attorney General for prosecution of the parents for contempt of court. There are two major considerations in this respect: the welfare of this child, and the public interest.

38 I do not think that the welfare of this child will be advanced by referral for prosecution. That course would require the parents to devote their efforts and resources to their defence, and distract them from their care and support for both of their children. Against that, however, the question of general deterrence looms very large. The Court made a series of orders, on repeated occasions, to try to procure the urgent vaccination of this child, to minimise a very significant risk to that child's future health. The parents defied those orders so long that any benefit for the child could no longer be gained. Only then did they emerge from hiding.

39 I am very concerned that failure to take some demonstrative action in those circumstances will send an entirely inappropriate message to others who may take the same position as these parents. Applications for compulsory treatment orders, though not a daily event, are not uncommon in this Court, and probably occur at least on a monthly, if not more frequent basis. The idea that parents can effectively circumvent them by going into hiding until their utility is spent would be a most inappropriate message to send to the community.

40 The parents have apologised to the Court. They say that they did not understand the gravity of the situation. I accept that they entertained genuine, if misguided, concerns about the risks of vaccination. They claim not to have understood that a court order prevails over a statement in a booklet that vaccination was a matter for the parents, but the more I recite that claim, the more feeble it sounds as justification for the course they adopted.

41 But I do take into account that the parents have acknowledged the error of their ways, and apologised for it. I take into account the detrimental effect that a prosecution for contempt will have on the welfare of the child and his sibling. I also take into account that there may be difficulties in strict proof of notice of the proceedings and the orders to the parents. I further take into account that the Director-General, who is ultimately responsible for advising the Minister on matters of policy in this field, does not press for a prosecution, and that it is generally undesirable that the Court should initiate such matters of its own motion.

42 It will be apparent that I entertain serious reservations about the course I propose to adopt. I hope these parents understand very clearly how close they have come to being in the most serious trouble, and that they could well have gone to gaol. But for the reasons I have outlined, and with grave reservations, I do not propose to refer to matter to the Attorney General.

43 I formally order:

1. That the interim wardship order and interim parental responsibility order be discharged; and

2. That the summons be dismissed.

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