Re Kara

[2020] NSWSC 1083

Supreme Court

New South Wales

Medium Neutral Citation:

Re Kara [2020] NSWSC 1083

Hearing dates:

12 August 2020

Date of orders:

12 August 2020

Decision date:

17 August 2020

Jurisdiction:

Equity - Duty List

Before:

Williams J

Decision:

Parens patriae jurisdiction invoked. The Court authorises the medical treatment of a child, and authorises the conveyance and confinement of that child to one of two specified medical facilities for the purposes of undertaking such medical treatment.

Catchwords:

FAMILY AND CHILD WELFARE – parens patriae jurisdiction – Aboriginal child under the parental responsibility of the Minister for all aspects except culture and religion – where child has extensive history of drug use, sexual abuse and exploitation as well as mental health problems – where child has unsuccessfully attempted several voluntary programs to treat her drug abuse and mental health problems – where proposed treatment plan seeks to confine child to medical facility in order for the child to undertake detoxification program – where medical evidence that child’s drug use is extreme and inconsistent with survival in the immediate foreseeable future – where no treatment options involving less interference with the child’s liberty are available and viable in the circumstances – medical treatment and confinement of child authorised

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 79

Family Law Act 1975 (Cth), ss 67Q, 67R, 67S, 67T, 67U, 67V, 67W, 67X, 67Y

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4

United Nations, Convention on the Rights of the Child (2 September 1990), Article 37

Cases Cited:

Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193

Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218

Category:

Principal judgment

Parties:

Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Communities, Families and Disability Services (Second Plaintiff)
Kara (First Defendant)
Ms P (Second Defendant)

Representation:

Counsel:
Ms K Shea (First and Second Plaintiffs)
Ms K Kelso, solicitor (First Defendant)

Solicitors:
NSW Crown Solicitor’s Office (First and Second Plaintiffs)
Legal Aid NSW (First Defendant)

File Number(s):

2020/235191

Publication restriction:

On 12 August 2020, the Court made orders prohibiting the publication or disclosure of information that would identify, or tend to identify, the identity or location of the child in these proceedings (known as “Kara”).

Judgment

1. Kara – not her real name – is a sixteen year old Aboriginal girl of the Wiradjuri and Yuin nations. Kara has experienced significant trauma throughout her life. She is under the parental responsibility of the Minister for Families, Communities and Disability Services (the Minister) until she attains the age of 18 years. At the time of the hearing before me on 12 August 2020, Kara was living in residential accommodation arranged by the Department of Communities and Justice (the Department) with 24 hour one-on-one care and support. Despite this level of support, Kara was at very high risk due to drug use and other behaviour.

2. On 12 August 2020, the Secretary, Department of Communities and Justice (the Secretary) and the Minister (together, the plaintiffs) made an urgent application to the Court for orders in the exercise of the Court’s parens patriae jurisdiction and the statutory jurisdiction under Part VII, Division 8 of the Family Law Act 1975 (Cth) (cross-vested in this Court by s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)) authorising the removal of Kara to a medical facility and her confinement at that facility for the purpose of undergoing a medically supervised detoxification and withdrawal program. This was proposed as a first step in what is likely to be a long program of medical and psychiatric treatment, care and support.

3. The plaintiffs adduced evidence from a child protection caseworker and evidence of reports relating to Kara’s behaviour and drug use, and the extreme risks to her health and welfare. The reports in evidence include a report dated 6 August 2020 prepared by a paediatrician and addiction medicine specialist. The Court had the benefit of submissions from Kara’s legal representative, who was able to appear at the hearing on short notice, in addition to submissions from the plaintiffs’ counsel.

4. At the conclusion of the hearing, I made the following orders on the basis that my reasons would be published at a later time:

“9.    That, until further order, the Court authorises the confinement of the young person known as “Kara” to or (if she leaves the premises) her return to, the [Hospital] or [Hospital], for the purpose of the treatment referred to in Order 10 and authorises the use of reasonable force if necessary to confine or return her to those premises.

10.    That, until further order, the Court authorises the administration of medical treatment to the young person known as “Kara” as recommended by [medical practitioner] and/or [medical practitioner].

11.    That, until further order, the Court authorises the use of reasonable force if and to the extent necessary to restrain the young person known as “Kara” from injuring herself and/or others.

12.    That, until further order, the Court authorises “Kara” to be conveyed to [Hospital] or [Hospital] for the purposes of undergoing treatment in accordance with Order 10, and the use of reasonable force and if and to the extent necessary order to convey her to those premises.

12A. Order pursuant to s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and s 67Q(c) and (d) of the Family Law Act 1975 (Cth) that, conditional upon “Kara” failing to return to her current placement before midnight on 12 August 2020 (and remaining there until 9.00am on 13 August 2020 (subject to order 12 above) as required by the Minister having parental responsibility for “Kara” pursuant to orders made by the Children’s Court of New South Wales on 26 March 2020, and as previously communicated by the Department of Communities and Justice on behalf of the Minister to “Kara”), all officers of the NSW Police Force are authorised to recover “Kara” and deliver to the Minister or the Minister’s delegate to one of the locations referred to in order 12 above as nominated by the Minister or the delegate.”

5. These are my reasons for making those orders on 12 August 2020.

Kara’s background and diagnosis

6. As I referred to above, Kara is sixteen years old. She identifies as Aboriginal through both birth parents, and is of the Wiradjuri and Yuin nations. Kara has three siblings: an older sister, an older brother and a younger sister. Her parents are no longer in a relationship. Kara’s father has been incarcerated for most of her life.

7. The Department had received numerous Risk of Significant Harm reports concerning Kara since 2005. The concerns raised by those reports included domestic violence, assault, parental incapacity due to drug and/or alcohol misuse and neglect. On 13 November 2012, Kara and her siblings were assumed into care by the Department.

8. Between about November 2012 and January 2016, Kara lived with her maternal aunt and maternal grandparents. Kara had a close relationship with her maternal grandmother, who passed away in December 2013. Kara was greatly affected by her grandmother’s death and it appears that her mental health deteriorated at about this time. This led to her maternal grandfather and aunt relinquishing care of Kara in about January 2016.

9. Kara chose to live with her mother between January 2016 and December 2017.

10. Since December 2017, the Department has arranged numerous accommodation placements for Kara with support intended to ensure her care and protection. One of those placements was with a foster family, and others were hotel or apartment-style accommodation with 24 hour support provided by carers. Kara has not remained at any of those placements for any significant length of time and continues to express a desire to live with her mother. Kara frequently removes herself from placements in order to return to live with her mother, including during January and February this year.

11. Kara’s current placement, which was arranged at the end of April 2020, is apartment accommodation with 24 hour carer support, supplemented by mentoring and support provided by an Aboriginal organisation which helps Kara to maintain her relationships and connections with her kin, elders and the community.

12. Kara is frequently absent from the placement during the day, which makes it difficult for her carers to meet with Kara to offer her additional support and to discuss her placement needs and future goals. She is required by Department (on behalf of the Minister who has parental responsibility for Kara) to be at her residential placement between the hours of midnight and 9:00am each morning. According to the child protection worker who gave evidence at the hearing on 12 August 2020, Kara’s carers frequently remind her of this requirement, yet she fails to return to the placement before midnight (or, indeed, at all) more often than not.

13. According to the caseworker, Kara struggles with emotional regulation and this can result in verbal and physical aggression at times. Since Kara entered her current placement at the end of April 2020, there has been one incident in which Kara screamed at youth workers and threw an object at a car window, which resulted in the window shattering.

14. The Court also heard evidence that a youth worker at the Aboriginal organisation with whom Kara developed a particularly close connection is currently on stress leave due to Kara’s ongoing abuse and other behaviour that caused their relationship to become strained.

15. Kara continues to express a desire to live with her mother. The evidence indicates that Kara’s family is very important to her and she spends time with them regularly. The child protection caseworker gave evidence that Kara’s emotional dysregulation can become easily triggered when she spends time with her family, and this has frequently resulted in verbal and physical aggression directed at family members and, in particular, directed at her mother. As referred to later in these reasons, Kara is currently the subject of an Apprehended Violence Order for the benefit of her mother.

16. The caseworker also gave evidence that Kara’s mother understandably finds it difficult to see Kara in distress, and will therefore often act to minimise Kara’s immediate distress (for example, by supplying her with cannabis), but these actions undermine the work that the Department is trying to do in the best interests of Kara’s health.

17. The Department does not support restoration of Kara to either of her parents, as the Children’s Court of New South Wales has found that there is no realistic possibility of restoration to either parent. However, the plaintiffs recognise that, despite the volatility of their relationship, Kara’s mother is an important person in her life and that the Children’s Court has acknowledged the importance of her mother to Kara’s cultural identity. On 26 March 2020, the Children’s Court made orders pursuant to s 79(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) allocating parental responsibility for Kara until she attains 18 years of age to the Minister for all aspects except culture and religion and to Kara’s mother for the aspects of culture and religion.

18. There was evidence before the Court that Kara’s medical records disclose a history of substance abuse since 2016, when Kara was 12 years of age. At that time, Kara was smoking cigarettes and cannabis daily and smoking methamphetamine almost daily.

19. In February 2017, Kara was admitted to the Children’s Hospital at Westmead with a drug-induced psychosis associated with methamphetamine use.

20. In about 2019, Kara began using methamphetamine intravenously. This use is continuing, almost daily. In addition, Kara was admitted to hospital in March 2020 after a suspected heroin overdose.

21. Kara has frequently expressed a desire to stop using drugs and to undertake rehabilitation. Kara has also attempted to engage in rehabilitation programs, but these attempts have been relatively short-lived and unsuccessful.

22. In 2019, Kara attended an adolescent residential drug and alcohol rehabilitation program known as “PALMS”, but was required to leave after about one week after staff observed Kara’s mother allegedly providing her with drugs during a visit.

23. From August 2019 to December 2019, Kara engaged intermittently with an adolescent drug and alcohol rehabilitation service known as “CICADA”.

24. CICADA has a multidisciplinary team including a paediatrician, psychologist, youth health nurse and social worker who provide health assessment, drug and alcohol assessment, counselling and intervention to young persons and also offer support to their carers.

25. CICADA made a preliminary diagnosis that Kara was suffering from Substance Use Disorder, Complex Trauma/Post Traumatic Stress Disorder and Attention Deficit Hyperactivity Disorder, as well as noting that there were also historical reports of depression and anxiety. However, CICADA had been unable to complete their assessments because Kara chose to disengage with the service.

26. In April 2020, the Department considered a referral to Intensive Therapeutic Care (or ITC) for Kara. However, it was determined that ITC could not meet Kara’s needs because she needed to detoxify and withdraw from substances, and also to undertake a comprehensive psychiatric and cognitive assessment to accurately identify her needs, before receiving the therapeutic care that can be offered in a residential setting in ITC. In addition, a placement with other young people, such as ITC, was considered unsuitable having regard to Kara’s significant drug use and ongoing risk-taking behaviour.

27. On 12 May 2020, Kara re-engaged with CICADA by participating in a telehealth consultation.

28. During June and early July 2020, Kara attended three appointments at CICADA, and was seen by a paediatrician and an addiction medicine specialist. Attendance at these appointments was a condition of bail granted to Kara in June 2020.

29. Kara disclosed to the specialist that she consistently uses drugs such as ICE (including intravenously), cannabis, nicotine and alcohol and that she has more recently started using heroin. The specialist prescribed anti-psychotic medication for Kara and medication to assist with reducing hyperarousal and anxiety. There is evidence before the Court that youth workers endeavour to administer the prescribed medication to Kara daily, but she frequently refuses to take the medication.

30. On 6 August 2020, the specialist prepared a report in relation to Kara. The specialist made the following diagnosis:

“Diagnosis:

Post Traumatic Stress Disorder with dissociative symptoms – DSM V 309.81 (F43.10)

[Kara] has experience chronic and complex trauma including domestic violence, death of a close relative, childhood sexual assault. She experiences intrusive symptoms such as flashbacks and dissociation, negative mood and cognitions associated, marked alterations in arousal and reactivity associated including irritable behaviours, anger outbursts, reckless and destructive behaviours, sleep disturbance and poor concentration. [Kara] has not engaged with psychological counselling for PTSD or sexual assault counselling.

Substance Use Disorder and Polysubstance use

Stimulant Use Disorder (methamphetamine) DSM 304.40 (F15.20)

[Kara] has a history of methamphetamine use for 4 years, leading to significant impairment in all aspects of her life, impacting her ability to engage in meaningful activities, education, relationships and impacts on her safety. She continues to use despite the risk of harm to herself and others. There is a history of aggressive behaviours which may be associated with intoxication and/or withdrawal

Cannabis Use Disorder Severe – DSM 305.30 (F12.20) [Kara] has a problematic pattern of cannabis use leading to clinically significant impairment in function including, recurrent daily use, persistent strong cravings, evidence of tolerance, persistent use despite social and interpersonal relationships affected by use,

Cannabis Withdrawal Syndrome – DSM 292.0 (F12.238) [Kara] demonstrates withdrawal symptoms such as irritability, anger, aggression, nervousness, anxiety and sleep difficulty when unable to access cannabis.

Tobacco Use Disorder – DSM 305.1 (F17.200)

Substance Induced Psychotic Disorder – DSM 292.9 (F15.159)

(Admission to Children’s Hospital Westmead – February 2017, St George Hospital ED – May 2020)

…

Possible Dignosis – requiring further psychiatric and neurocognitive assessment

-    Neurodevelopmental Disorder – such as;

Intellectual Disability and/or Specific Learning Disability

Attention Deficit Hyperactive Disorder

Language Disorder (expressive or receptive language disorder)

Executive function disorder

-    Psychiatric Disorder – [Kara] has a strong biological pre-disposition to psychotic disorder and mental illness and has high risk for early psychosis, having had at least 2 episodes of drug induced psychosis and persistent heavy substance use during her adolescent years.”

31. The specialist described the impact of Kara’s substance abuse on her functioning:

“Impact of Kara’s substance abuse on her functioning;

As outlined above, [Kara’s] substance use has significant impact on her general health and wellbeing, her mental health and social and emotional development. She has had multiple physical harms associate with use including sexual assault, skin infections, urinary tract infections, injury and physical trauma. She has a had presentations to various hospitals around Sydney for issues related to substance use including behavioural disturbance, deliberate self harm, suicidal ideation, heroin overdose and psychosis.

[Kara] has not been able to achieve normal adolescent developmental milestones, such as developing healthy peer relationships, engaging in meaningful education, pursuing activities and interests due to the instability created in her life as a result of substance use. [Kara] has also had recurrent juvenile charges as a result of damages to property, aggravated assault and breech [sic] of bail conditions, often related to substance intoxication or withdrawal. Her substance use has also contributed to the history of poor engagement in education, mental health and other support services.”

32. The specialist’s remarks are consistent with other evidence before the Court concerning the history of Kara’s admissions to hospital, the sexual assault and exploitation she has suffered and her engagements with the criminal justice system.

33. Kara’s admissions to hospital in 2020 alone include:

1. admission on 9 January 2020 with a suspected overdose of ICE and Valium;

2. admission under police guard on 13 February 2020 due to police concerns about Kara’s medical condition. Kara was diagnosed with pyelonitis, which is an inflammation of the kidney due to bacterial infection and possibly a sexually transmitted infection. The hospital administered one dose of antibiotics intravenously, but Kara absconded from hospital before a further two planned doses could be administered;

3. admission on 10 March 2020 with a suspected heroin overdose. During this stay in hospital, Kara expressed suicidal thoughts;

4. admission on 8 June 2020 following self-harming behaviour and erratic and aggressive behaviour which was thought to be drug-induced; and

5. admission on 6 July 2020 due to carer concerns about Kara’s increased agitation and verbal threats to carers.

34. The child protection caseworker gave evidence to the effect that the plaintiffs have serious concerns about Kara being sexually abused and exploited. Due to her drug use, Kara finds herself in a high risk situation where there is the potential for abuse. Kara had disclosed one occasion on which she felt she had been drugged and “taken advantage of” in a park. However, she refused to be interviewed about the matter, and further details had therefore not been obtained. Kara has received Facebook messages of a sexual nature from a 41 year old man with a long criminal history, including drug charges and sexual assault charges. Kara refers to this man as her “dealer”. At times, Kara has spent time in the company of two men in their 30s with whom she has used drugs. The caseworker’s understanding is that those men have sexually and physically assaulted Kara.

34. Between October 2016 and July 2020, Kara has been in custody 31 times. Most of these incarcerations have been overnight, but she was incarcerated at a Youth Justice Centre between 11 and 17 March 2020.

35. On 10 June 2020, Kara was sentenced to a good behaviour bond for nine months with supervision of Youth Justice for assault, robbery and property damage.

36. As referred to above, Kara is the subject of an Apprehended Violence Order for the protection of her mother. The order provides that Kara must not assault or threaten, stalk, harass or intimidate her mother, and must not intentionally or recklessly destroy any property belonging to or in the possession of her mother.

37. Another aspect of the impact of substance abuse on Kara is that she ceased attending school in about 2017, when she was in year 7.

38. The specialist acknowledged Kara’s struggle to engage with rehabilitation services:

“She is doing her best to engage with outpatient appointments with the support of her youth justice officer ... and also her…mentors and … carers. She is ‘help seeking’ at the time she engages with CICADA however tolerates appointment of 15-20 mins only. She presents as a young person with limited understanding, insight and poor capacity to keep herself safe. She acknowledges her need for help to address her substance use disorder frequently stating ‘I know I need to go to rehab’.”

40. The specialist’s overall assessment of Kara’s current condition is devastating and alarming (my emphasis):

“[Kara] now has almost no control of her own decision making and behaviour. Her ongoing drug behaviour is extreme and inconsistent with survival in the immediate foreseeable future. Her exposure to sexual exploitation and physical danger during intoxication makes her liable to death by misadventure if not the more malign intentions of those supplying the substances she cannot afford. There are no voluntary and less restrictive options for her care.”

The treatment plan for Kara

41. The treatment recommended by the specialist is for Kara to be admitted to one of two secure inpatient mental health facilities for adolescents suffering mental health disorders or mental illness, for the purpose of medical management of substance withdrawal, cognitive and psychiatric assessment, general medical assessment, pharmacological treatment and psychological treatment to assist with stabilisation prior to transition into longer term secure accommodation to be arranged by the Department. The choice of facility to which Kara is admitted would depend on availability of beds within the two facilities at the time of her admission.

42. The treatment plan and goals involve six stages:

“c) Inpatient Treatment Plan and Goals – to be delivered under the principles of trauma informed care and practice (may be up to 6 weeks)

1. Withdrawal management for substance use disorder to reduce risk of harm and interrupt pattern of substance use

2. Psychiatric assessment and Medication Review

3. Cognitive assessment including neurocognitive testing, speech therapy and occupational therapy

4. Other medical assessment and treatment including gynaecological review, sexual health screening and provision of long acting reversible contraception (Implanon insertion) with consent

5. Provide relapse prevention and harm minimisation counselling

6. Appropriate and safe placement post discharge from hospital”

43. Stage 1 – withdrawal management – will involve the administration of the medication that is already prescribed to Kara to manage her hyperarousal and anxiety, together with additional medications to alleviate symptoms of withdrawal, such as anxiety, agitation and psychological distress. Nursing care will be provided, with close monitoring for signs of any complications. Supportive care will also be provided by nursing staff, psychologists and social workers. The supportive care will focus on matters such as relaxation techniques, management of cravings, diversional therapies (for example, art therapy) and cultural engagement with the assistance of an Aboriginal health nurse.

44. The Department proposes that Kara’s contact with her family, including her mother, during at least this stage of her treatment, will be limited to letters, cards and photographs. The Department proposes that there be no direct contact between Kara and members of her family during this stage for the following reasons:

1. it will not assist Kara to have her emotional dysregulation triggered by contact with her family while she is undergoing the withdrawal and detoxification stage of the proposed treatment;

2. it is not yet clear whether Kara’s state of health during withdrawal will be adequate to receive visitors; and

3. assuming that Kara is well enough to receive visitors, it is likely to be distressing for Kara’s mother to see her withdrawing from substances and she may endeavour to alleviate that distress by providing Kara with substances whilst visiting her as she has reportedly done in the past. Kara is at very high risk of overdosing if she is provided with substances during withdrawal.

45. For the same reasons, whilst the plaintiffs sought orders joining Kara’s mother as a second defendant to the proceedings as the person to whom the Children’s Court has allocated cultural and religious aspects of parental responsibility, the plaintiffs also sought orders that they serve Kara’s mother with only limited information concerning the proceedings at this stage so that she would not be able to identify the facility where Kara is proposed to be admitted as an inpatient.

46. However, the caseworker also gave evidence that:

1. if Kara’s treating doctors formed the view that it would be beneficial for Kara to have some contact with her family during the initial stage of treatment, the Department will consider that advice and determine how best to act on it in all the circumstances (for example, contact by telephone or face-to-face contact heavily supervised by officers of the Department);

2. the Department is concerned to ensure that Kara maintains her connection with her Aboriginal culture during the withdrawal phase of treatment and, for that purpose, the Aboriginal organisation which is currently providing mentoring and support services to Kara will continue to do so at times and in a manner that is informed by the advice of Kara’s treating doctors;

3. an Aboriginal health nurse would also be involved in Kara’s treatment in the facility;

4. the question of Kara’s contact with family members would need to be reviewed after the withdrawal phase of the proposed treatment; and

5. the Department had been undertaking family-finding work to identify members of Kara’s extended family. Whilst many of those family members had expressed inability to support Kara given her current behaviours, the Department is hopeful that those family members would be willing to engage in and support Kara’s recovery once she completes the initial phase of treatment.

47. Stage 2 will involve a comprehensive psychiatric assessment and stage 3 will involve neurocognitive testing, speech and occupational therapy assessments and an educational assessment with a view to Kara being able to engage with the hospital school when she is medically stabilised and preparing a plan for Kara’s future education and, ultimately, employment.

48. The neurocognitive assessment in stage 3 will inform the delivery of the psychological treatment and counselling in stage 5, which will commence while Kara is an inpatient at the facility and continue after she is discharged. This aspect of the treatment plan will be important in helping Kara to develop the ability to regulate her emotions, to identify safe people and places, to recover from the trauma she has suffered and, critically, to avoid or minimise the risk of relapse into substance misuse.

49. It is estimated that Kara will be an inpatient for approximately six weeks, although this length of time may be longer or shorter, depending on her progress. During Kara’s stay as an inpatient, the facility medical staff and the Department will have weekly or twice weekly meetings to discuss Kara’s progress.

50. The specialist’s report explains that, if Kara is resistant to treatment, all care will be made by her treating team to de-escalate the situation, engage her in therapy and offer oral medication and that the New South Wales Health guidelines for management of patients with acute severe behavioural disturbance will be followed. Those guidelines were in evidence, and provide for the use of physical restraints in circumstances where it is necessary to administer sedative medication, verbal de-escalation having been unsuccessful and the patient having refused to accept the sedative medication. The guidelines also require that patient’s airway and physical condition must be carefully monitored during the use of the restraints. The specialist’s report identifies that this may be necessary from time to time in Kara’s case, having regard to her history of physically aggressive behaviour. The specialist notes that one of the goals of Kara’s treatment is to identify whether the aggressive behaviour is related to substance use or an underlying psychiatric or neurocognitive disorder.

51. The specialist recommends that, following Kara’s discharge from the facility, the Department arrange an ongoing secure care placement for Kara in order to ensure that she can have ongoing therapy and trauma informed care, including drug and alcohol relapse prevention therapy, and engage in meaningful and safe relationships.

52. The child protection caseworker gave evidence to the effect that the Department proposes to move Kara to a therapeutic placement after her discharge from the inpatient facility, so that she can receiving ongoing drug and alcohol therapeutic support and together with assessments and treatments to manage her other complex needs, including trauma counselling, sexual health education and psychiatric care. The assessment of Kara’s cognitive functioning during her inpatient treatment will be an important input into these further assessments and the development of an ongoing support and treatment plan.

53. The Department has currently identified three options for Kara’s post-discharge therapeutic placement, namely:

1. an established therapeutic, secure residential service operated by the Department, where young people reside together in secure cottages and receive the education and the care necessary to address their needs. This program is designed for children and young people whose needs are so complex that they cannot safely be accommodated, treated and educated in the community;

2. a bespoke therapeutic placement that replicates the established service referred to above but that is directed to Kara’s specific needs; or

3. an Intensive Therapeutic Care placement, which is not currently appropriate for Kara but which may be suitable after her inpatient treatment.

54. As I have already referred to above, the specialist has stated that there are no voluntary and less restrictive options for the treatment and care that Kara currently needs during detoxification and withdrawal.

55. Kara’s previous attempts to engage in drug and alcohol rehabilitation voluntary have not succeeded. The plaintiffs consider, and the specialist agrees, that it is likely that further attempts to encourage Kara to engage in voluntary programs would also fail.

56. In her report dated 6 August 2020, the specialist explained that there are currently no designated inpatient adolescent drug and alcohol units with medical and psychiatric care in New South Wales. The unit to which it is proposed to admit Kara as an inpatient is a mental health facility within a hospital, so that Kara will be able to receive medical management of her withdrawal in addition to the psychiatric, psychological and other therapy that she needs.

57. The specialist explained that there are adult drug and alcohol withdrawal inpatient units at a number of Local Health Districts in New South Wales, but it would not be appropriate for a 16 year old girl with a history of sexual exploitation to be admitted to such a unit.

58. There are also two units within New South Wales for the admission of patients for involuntary drug and alcohol treatment. However, the specialist is of the opinion that it is not developmentally appropriate for a 16 year old girl to be admitted to such a facility.

59. As I have already referred to above, the 24 hour care provided for Kara in residential placements arranged by the Department has not succeeded in alleviating Kara’s current pattern of behaviour in which she is putting herself at significant risk, and Intensive Residential Care has been determined to be unsuitable, having regard to the need for Kara to first undertake detoxification and withdrawal and taking into account the complexity of her needs.

60. The specialist identified the following risks to Kara if she does not receive appropriate treatment for substance abuse:

Risk of harm to herself

Continued risk of sexual exploitation

Continued risk of ongoing sexual assault

Risk of substance overdose and death

Risk of early psychosis ad mental illness, including risk of suicide

Risk of further juvenile charges and Incarceration

Risk of harm to others due to violence and aggression

Risk of chronic unemployment

Risk of unplanned pregnancy and prenatal substance exposure to unborn child

61. It is these risks that inform the specialist’s opinion to which I have already referred above, that Kara’s ongoing drug use is “extreme and inconsistent with her survival in the immediate foreseeable future” and that she is “liable to death by misadventure”.

The Court’s parens patriae jurisdiction

62. The principles that govern the exercise of the Court’s parens patriae jurisdiction in matters of this nature have been explained by Brereton J (as his Honour then was) in Re Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 at [7]–[22] and Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217 at [22]–[38], referring to relevant authorities including Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218. I gratefully adopt his Honour’s learned analysis.

63. In short, the parens patriae jurisdiction is a very wide jurisdiction that must be exercised with great caution, remembering always that the foundation of the jurisdiction is the need to act for the protection of those who cannot care for themselves.

64. The jurisdiction extends to making orders about the custody and care of children, whether or not the children have been declared to be wards of the Court. This includes:

1. the exercise by the Court of parental responsibility in circumstances where a child’s parents cannot or will not appropriately do so; and

2. the authorisation of acts and decision in respect of a child which fall outside the scope of parental decision-making powers, and therefore lie outside the scope of the powers, rights and duties of a parent or guardian of the child.

65. Children have a fundamental human right not to be deprived of their liberty unlawfully or arbitrarily, as provided for in Article 37 of the United Nations, Convention on the Rights of the Child. However, in exceptional cases where deprivation of liberty is a necessary consequence of the exercise of the parens patriae jurisdiction for the protection of the child and the promotion of his or her welfare, the making of orders by the Court as parens patriae that interfere with the personal integrity and liberty of a child will not contravene the child’s human rights.

66. The parens patriae jurisdiction does not empower the Court to make orders conferring on third persons, including police officers and medical practitioners, authority that they do not otherwise have. Rather, the Court exercises the jurisdiction to authorise treatment or other action, and that authorisation given by the Court as parens patriae renders the treatment or action by the third party lawful irrespective of whether the child or the child’s parents consent.

67. In addition to the parens patriae jurisdiction, the Court also has the powers relating to children provided by Part VII, Division 8 of the Family Law Act, by reason of s 4 of the Jurisdiction of Courts (Cross-Vesting) Act. Relevantly for the purpose of the present case, those statutory powers include the power to authorise or a direct a person or persons to recover a child (using force, if necessary) and deliver the child to a parent of the child or a person with parental responsibility for the child, or to some other person on behalf of a parent or person with parental responsibility: see ss 67Q to 67Y of the Family Law Act. In deciding whether to make such an order, the Court must regard the best interests of the child as the paramount consideration: see s 67V of the Family Law Act.

Conclusion

68. In the present case, the plaintiffs ask the Court to make the orders sought on the basis that the proposed confinement of Kara as an inpatient in the secure mental health facility is beyond the ordinary scope of the parental power and responsibility allocated to the Minister, and therefore requires the sanction of the Court as parens patriae. I agree that, as Brereton J found in relation to a similar course of proposed treatment in Re Thomas (supra), the proposed treatment of Kara whilst confined in this facility requires authorisation by the Court as parens patriae.

69. The plaintiffs submitted that the treatment program described above, including Kara’s detention in the medical facility where her detoxification and withdrawal will be medically supervised, is currently the only way to keep Kara safe (unless she is incarcerated in juvenile detention, but that would not be appropriate for her long term care). More importantly, it is the only option available for Kara to achieve detoxification and withdrawal, so that her many other needs can then be addressed.

70. Kara’s legal representative supported the orders sought by the plaintiffs for Kara’s transport to and detention at the inpatient facility for the treatment that I have described above. It was submitted that the circumstances in this case are exceptional and warrant the exercise of the parens patriae jurisdiction to deprive Kara of her liberty in order to administer the proposed treatment. On the basis of the evidence to which have referred above, Kara’s legal representative submitted that the treatment proposed by the plaintiffs was the only viable option for Kara as she has very complex needs that have not been able to be addressed through the efforts made by the Department over the years, including the provision of 24 hour one-on-one care and support. Kara’s attempts to engage in rehabilitation voluntarily have not been successful and she presently lacks the ability to make good decisions for herself.

71. I accept these submissions of the plaintiffs and Kara’s legal representative. The evidence that I have referred to above establishes that Kara is presently at very high risk of premature death due to misuse of drugs, and sexual exploitation associated with her drug use. Whilst her drug use continues, Kara’s underlying psychiatric condition, the effects of the significant trauma that she has suffered, and her other needs cannot be properly assessed, let alone addressed. The Department’s efforts to keep Kara safe through 24 hour one-on-one care over several years have not succeeded in protecting her from harm or enabling her to make good decisions for herself. Kara’s own efforts to engage in rehabilitation voluntarily have failed, and there is no realistic prospect that voluntary rehabilitation would succeed now if attempted again.

72. The orders involve a very serious interference with Kara’s liberty. However, this is for the purpose of the treatment described above, and I am satisfied that this is necessary in all the circumstances in order to protect Kara from serious harm or death in the short term and to promote her longer-term welfare. Indeed, the evidence establishes that this treatment is the only option left to try and save Kara from her current dire predicament. As referred to below, the arrangements authorised by the orders apply only until further order of the Court, and will be the subject of regular review by the Court.

68. For those reasons, I was satisfied following the hearing on 12 August 2020 that the orders made on that date were necessary for the protection of Kara, and were in the best interests of Kara, and that it was appropriate to make the orders in the exercise of the Court’s parens patriae jurisdiction (and, in the case of order 12A, in the exercise of the Court’s statutory jurisdiction under s 67U of the Family Law Act).

Next steps

74. The orders made on 12 August 2020 that I have set out in [4] above will be the subject of ongoing review and consideration by the Court, based on reports to be provided to the Court about Kara’s progress under the treatment program and plans to be prepared by the plaintiffs as to how Kara’s ongoing and complex needs will be met as the treatment progresses and also at the conclusion of the treatment program.

75. Kara’s legal representative submitted, and I accept, that significant work will need to be done to identify how Kara’s needs can be met after she is discharged from the inpatient facility, and that the matter should be brought back before the Court within a relatively short period after Kara’s admission to the facility for the Court to hear evidence about Kara’s progress and to deal with the question of the ongoing involvement of Kara’s mother in the proceeding and the manner in which she is to be involved in the cultural and religious aspects of Kara’s parenting during her treatment at the facility and thereafter. I note that Kara’s legal representative did not oppose the orders sought by the plaintiffs being made in the absence of Kara’s mother on 12 August 2020, but did identify the importance of Kara’s mother having an opportunity to appear and make submissions on the next occasion.

76. To that end, I also made the following orders on 12 August 2020:

“13.    That the plaintiffs file and serve a report or evidence, on or before 2:00pm on 24 August 2020, concerning Kara's progress including:

information about Kara’s transport and transition into hospital for the purposes of the treatment referred to in Orders 9 and 10.

information in relation to Kara’s progress in treatment and recommendations for further treatment;

information as to any psychiatric, cognitive or other medical assessments conducted (including a copy of any relevant reports);

information in relation to plans for Kara’s post-discharge placement;

information in relation to any use of reasonable force or restraints on Kara in accordance with Order 11 including the frequency, type and reason for such use;

information as to contact between Kara and family members and other persons with whom Kara has a cultural connection during the course of her treatment, including any recommendations from Kara’s treating practitioners in relation to such contact for the remaining course of treatment; and

information in regard to how Kara’s cultural needs will be met in the short and long term.

14.    That the parties have liberty to apply on 24 hours’ notice.”

77. When the matter is before the Court on the next occasion, Kara’s mother will have been served with the orders made on 12 August 2020, with the identity of the facility to which Kara is admitted redacted, for the reasons that I have referred to in [44]–[46] above. For those same reasons, Kara’s mother is unlikely to have had any direct contact with Kara during the first two weeks of her treatment. Whether or not that remains in Kara’s best interests after her first two weeks of treatment, and the extent of information that Kara’s mother requires in order to participate in this proceeding in her capacity as the person to whom the Children’s Court has allocated cultural and religious aspects of parental responsibility for Kara, will be very much in issue at the next hearing on 26 August 2020.

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Decision last updated: 17 August 2020