Re Julian

[2014] NSWSC 399

Supreme Court

New South Wales

Medium Neutral Citation:	Secretary of the Department of Family and Community Services; Re Julian [2014] NSWSC 399
Hearing dates:	2 April 2014
Decision date:	02 April 2014
Jurisdiction:	Equity Division - Duty List
Before:	Stevenson J
Decision:	Secure accommodation order made
Catchwords:	FAMILY LAW AND CHILD WELFARE - parens patriae jurisdiction - whether secure accommodation order should be made
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Civil Procedure Act 2005
Cases Cited:	Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 Marion's case; Secretary, Department of Health and Community Services v JWB and SMB (1998) 175 CLR 218
Texts Cited:	Young, Croft and Smith, On Equity, (2009)
Category:	Procedural and other rulings
Parties:	Secretary of the Department of Family and Community Services (First Plaintiff) Minister for the Department of Family and Community Services (Second Plaintiff)
Representation:	Counsel: M England (Plaintiffs) Solicitors: Crown Solicitor's Office (Plaintiffs)
File Number(s):	SC 2014/99662

EX TEMPORE Judgment (revised)

1. The Secretary of and the Minister for the Department of Family and Community Services seek secure accommodation orders under the parens patriae jurisdiction of the Court for the protection of a young person who I will call Julian (not his real name).

1. The Minister has parental responsibility for Julian pursuant to final care orders made under the Children and Young Persons (Care and Protection) Act 1998 on 24 September 2013.

1. This case is said to be an exceptional case. It is said that orders sought are necessary to protect Julian and those around him from risk of serious harm.

1. The orders are sought before me as Duty Judge on an urgent ex parte basis. The Secretary and Minister seek a return date for the Summons in a few days' time in order to give an independent child representative, to be appointed by the Legal Aid Commissioner, an opportunity to play any role as contradictor, if thought appropriate.

1. It is not necessary for me to describe the parens patriae jurisdiction in any detail. It is described in Young, Croft and Smith, On Equity, (2009) especially at paragraphs 4.180 to 4.280 and the decision of the High Court in Marion's case;Secretary, Department of Health and Community Services v JWB and SMB (1998) 175 CLR 218, especially at 258-9, per Mason CJ and Dawson, Toohey and Gaudron JJ.

1. Suffice to say for present purposes, the jurisdiction is broad, protective and flexible, but one to be exercised with great caution.

1. The particular orders sought today, secure accommodation orders, were discussed in detail by Brereton J in Director General, Department of Community Services Re Thomas [2009] NSWSC 217; 41 Fam LR 220. Paragraph 28 of his Honour's judgment is particularly apposite to this case, and I set it out below:

"In the present proceedings, the Director-General seeks permission to detain Thomas indefinitely in a secure unit, and to restrain and medicate him as the circumstances may require. There is no statutory provision that authorises, or provides for, the detention of a child as an ongoing "non-temporary" aspect of his or her treatment and protection (s 158 of the Care Act, while authorising detention for some purposes, permits it only on a temporary basis). The present application is made on the premise that the proposed arrangements - in particular, insofar as it is proposed to confine Thomas in secure accommodation indefinitely - involve acts or procedures beyond the ordinary scope of parental power, so as to require the sanction of the Court as parens patriae. I agree that the indefinite confinement of a 15-year-old child in secure premises that he cannot leave of his own volition is beyond the ordinary scope of parental responsibility, and requires the sanction of the Court. While it can be accepted that parents have authority to interfere or restrict the liberty of their children to some extent, I cannot think it extends to the indefinite confinement of a 15-year-old. However, for the reasons that follow, I am satisfied that, within its wide parens patriae jurisdiction - under which the powers of the Court are more extensive than those of parents - the Court may authorise such confinement."

1. I have been greatly assisted by the careful and comprehensive submissions I have received from Ms England, who appears for the Secretary and the Minister, and from the comprehensive evidence provided by Ms Catherine Keady in her affidavit sworn today. Ms Keady is an acting Manager Client Services within the Metropolitan Intensive Support Services team at the Department of Family and Community Services and has overall case management responsibility for Julian. Much of what follows comes from those submissions and that evidence.

1. The involvement of the Department with Julian commenced in October 2008. The records of the Department show that Julian has since then been subject of more than 90 risk of harm reports and other reports.

1. Julian is aged 15 years and 3 months, and has a complex mental health profile involving a number of aggressive sexual behaviours. Absent careful superintendence, he is at risk of entering the juvenile justice system. Since entering care, Julian has required protective support.

1. Julian's behaviours create difficulties in locating suitable placement. This has led to multiple placements and a number of placement breakdowns.

1. In November 2013, following his release from the XXX Juvenile Justice Centre, Julian was placed with the XXX residential facility at XXX. Thereafter he was, for a short time, admitted to the XXX Adolescent Unit at XXX. Julian was discharged from the XXX Adolescent Unit in February 2014. Since then, Julian has been at XXX where he shares his current placement with three male co-residents of a similar age.

1. XXX has engaged in what is called a "behavioural intervention support plan" to manage Julian's behaviours. That plan requires Julian and a carer to retreat to, and be confined in, his designated area (which includes the bedroom, television area and access to the staff bathroom) at 8pm each evening and to remain in that area until the morning. This routine was developed because Julian displays low levels of compliance in the evening. After around 8pm he is far more likely to be explosively aggressive.

1. During the day, Julian is free to leave XXX as he wishes.

1. I am told that Julian feels safe at XXX and that he is, in large part, accepting of the arrangements I have described at [13].

1. Ms Keady has expressed the opinion, which I accept, that the more time Julian spends with his current care team and the more time he is involved in the secure placement after 8pm, the more optimistic are his prospects.

1. In Ms Keady's opinion, the retreat to, and confinement in, a secure area each day is necessary for Julian's immediate safety and his future physical, mental and emotional well being.

1. The matter has been brought on today urgently, and on an ex parte basis, because the Secretary and the Minister have very recently received advice that, absent an order of the kind now sought, it is doubtful that XXX has the power to confine Julian each night in the manner described at [13].

1. In these circumstances, I am satisfied that it is in Julian's interests that the current arrangements continue and that the risk of harm to Julian and to those around him be managed by the orders sought. I am also satisfied that nothing short of those orders will be adequate to manage such risk of harm.

1. Julian's parents are supportive about his current placement and are committed to his well being. In those circumstances, I do not consider it necessary that the parents be joined as a party to the proceedings. In my opinion, it is appropriate to deal with the matter without their involvement.

1. In those circumstances, I propose to make orders 6, 7, 8, 9, 10, 11 and 12 of the document called Short Minutes of Order which I will initial, date, and place with the papers.

1. Those orders are as follows:

(1)   Grant leave to the file in Court Summons, Notice of Motion and Affidavit of Catherine Keady of 2 April 2014.

(2)   Order that the Summons and Notice of Motion be made returnable instanter.

(3) Pursuant to s 71 of the Civil Procedure Act 2005 the Court be closed for the hearing of the Notice of Motion.

(4)   I appoint 9 April 2014 at 10am before the Duty Judge as the return date of the Summons.

(5)   That time for service of the Summons is abridged to 5pm Thursday 3 April 2014.

(6)   That the proceedings be known as "Re Julian" and that the child the subject of the proceedings be known as "Julian".

(7)   That the young person "Julian" be separately represented and that the Crown Solicitor request the Legal Aid Commission of New South Wales to arrange such representation.

(8)   That no publication that would identify, or tend to identify, "Julian", the child the subject of these proceedings, occur except for the purpose of the proper conduct of the proceedings.

(9)   That, until further order, leave be granted to the Secretary of the Department of Family and Community Services or his nominee, using whatever assistance may deem appropriate, to be authorised to:

(a)   Restrain "Julian" in order to prevent him from injuring himself, and/or others and property;

(b)   Confine "Julian" to a secured space for a designated period of time each day; and

(c)   Use, so far as is necessary, reasonable force in doing either (a) and/or (b).

(10)   That the parties have liberty to apply on 24 hours' notice.

(11)   That the orders made in the proceedings today be entered forthwith.

**********

Decision last updated: 14 April 2014