Re Kara (No. 7)

[2021] NSWSC 22

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Kara (No. 7) [2021] NSWSC 22

Hearing dates:

7 January 2021

Date of orders:

7 January 2021

Decision date:

27 January 2021

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Orders made for the recovery of the young person and for her confinement to Sherwood House facilities while she undertakes medical treatment.

Catchwords:

CHILD WELFARE – Care proceedings – parens patriae jurisdiction – Aboriginal young person under the parental responsibility of the Minister for all aspects except culture and religion – orders previously made authorising medical treatment and confinement of the young person as an inpatient in a medical facility for the purposes of undertaking the treatment, and later as an outpatient and for rehabilitation and recovery – young person has frequently absconded from secure premises – young person previously considered for possible admission to Sherwood House – young person is presently at large and her whereabouts have been uncertain – opportunity for admission to Sherwood House arises – whether a secure accommodation order should be made placing her at Sherwood House.

Cases Cited:

Director General, Department of Community Services v Jules (2008) 40 Fam LR 122

Director General, Department of Community Services v Thomas (2009) 41 Fam LR 220

Re Kara (No. 6) [2020] NSWSC 1857

Re Sally [2009] NSWSC 1141

Category:

Consequential orders

Parties:

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

Representation:

Counsel:
First and Second Plaintiff: K. Shea

Solicitors:
First and Second Plaintiff: L. Spencer, NSW Crown Solicitor
Independent Legal Representative for the child: K. Kelso, Legal Aid NSW
Second Defendant: mother in person

File Number(s):

2020/000235191

Publication restriction:

On 22 September 2020, the Court made orders prohibiting the publication or disclosure of information that would identify, or tend to identify, the identity of the young person in these proceedings (known as “Kara”).

Judgment

1. This is the Court’s seventh judgment in these proceedings. It concerns a 16 year old young person known by the pseudonym “Kara”. In the last of the Court’s six previous judgments Williams J provided a comprehensive history of the Court’s various orders confining Kara to facilitate her medical treatment: Re Kara (No. 6) [2020] NSWSC 1857.

2. This judgment assumes familiarity with Williams J’s Re Kara (No. 6) and the five earlier judgments in the proceedings, four of her Honour and one of Rees J. Kara’s troubled personal history includes regular absconding from her family environment, unbounded illicit drug taking, willingness to form unsafe relationships and repeated sexual abuse by a drug dealer. She has been medically diagnosed with Complex Trauma and Substance Abuse Disorder.

3. Between 12 August and 24 September 2020, Kara had been confined at the Saunders Unit at the Sydney Children’s Hospital in Randwick for the administration of medical treatment to her. Kara’s treatment included her medically supervised withdrawal from illicit substances. On 12 August 2020, Williams J first authorised Kara’s confinement to the Saunders Unit. But she could not stay there in the longer term, as she was too old for the Saunders Unit environment.

4. After 22 September, Williams J made orders authorising Kara’s continued confinement in a secure location operated by Safe Places Community Services Ltd (“Safe Places”). This was designed to provide a structure for Kara to receive ongoing multidisciplinary support.

5. The Court’s earlier judgments grappled with how continuing orders should be moulded to respond to Kara’s frequent absconding from Safe Places, from where she was attracted to situations presenting grave danger to her and where her whereabouts were often unknown. With the assistance of the Kinchella Boys Home Aboriginal Corporation (“KBH”), Kara’s mother managed to return her from time to time to Safe Places. The detail of that absconding is found in the earlier judgments. But on each occasion that she returned to the secure placement Kara was exhausted, emotionally dysregulated and had suffered the interruption of her regime of medical treatment.

6. Williams J decided Re Kara (No. 6) on 17 December 2020, just before the 2020 law term finished. At the time of that judgment her Honour recorded (at [30] and [31]) that the secure facilities at Sherwood House were a possible alternative placement for Kara. It was thought that Sherwood House might be an option to provide a safe environment, whilst Kara underwent a continuous structured regime of treatment and rehabilitation. At the time of Re Kara (No. 6), only preliminary enquiries had been made about Kara’s possible accommodation at Sherwood House.

7. When the matter came before me as Equity Vacation Duty Judge on 7 January 2021, she had absconded yet again from Safe Places. When the duty hearing commenced it was thought that her whereabouts were unknown. But as the hearing proceeded it became clear that for once she was with her mother, who revealed this during her audio-link appearance before the Court.

8. Progress since Re Kara (No. 6) has been commendable. Ms Janice Carroll is the director of Intensive Support Services within the State Wide Services provided by the Department of Communities and Justice (“DCJ”). She has ascertained that a place is now available at Sherwood House for Kara. And an early application for Kara’s admission to Sherwood House was made on 7 January 2021.

9. Notwithstanding that Kara’s case was heard during the Court’s vacation, the Court had the assistance of the legal representatives familiar with the history of her case, Ms Shea of counsel for the plaintiffs and Ms Kelso, the Independent Legal Representative for Kara. And as earlier indicated, Kara’s mother (and for a time her step-father) appeared. In accordance with the Court’s current Covid-19 protocols for duty matters, the proceedings were conducted remotely by audio-link.

10. In the result, in the exercise of its parens patriae jurisdiction, the Court has decided to make orders confining Kara to the facilities at Sherwood House for therapeutic treatment. The Court’s jurisdiction and its willingness to make secure accommodation orders at Sherwood House in appropriate cases has been established in practice for over 10 years: Director General, Department of Community Services v Jules (2008) 40 Fam LR 122; [2008] NSWSC 1193 (“Re Jules”), Director General, Department of Community Services v Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217 (“Re Thomas”) and Re Sally [2009] NSWSC 1141 (“Re Sally”).

11. These reasons are necessarily brief, dealing only with the essential reasons for making the orders. This reflects the circumstances of the busy duty vacation list in which the Court made this decision.

Kara and Sherwood House

12. Kara’s medical and social situation strongly indicate that it is in her best long-term interests for an order to be made confining her to Sherwood House for therapeutic treatment.

13. Admission to Sherwood House has been contemplated for some time. As Williams J explained in Re Kara (No. 6) (at [55]), in December 2020, her Honour was continuing the existing secure accommodation orders to protect Kara and promote her welfare during the period, in a staged process in which,

“the plaintiffs make arrangements for an alternative placement with high levels of security that the events of the past few months have revealed to be necessary to give the therapeutic program devised for Kara a chance to begin to work. Whilst the current placement is not meeting Kara’s needs due to her determination to abscond, the continuation of the orders at least gives the plaintiffs and Safe Places the ability to attempt to confine Kara for the protective purposes recorded in the orders made on 22 September 2020”.

14. At the time of Re Kara (No. 6), the plaintiffs, Kara’s independent legal representative and Kara’s mother all agreed that the Safe Places placement was not meeting Kara’s needs: Re Kara (No. 6) at [26]. Discontinuing the existing secure accommodation orders presented too great a risk of harm to Kara and would deny her the practical opportunity of medical treatment and broader therapies. No other reasonably acceptable options presented themselves to Williams J in Re Kara (No. 6), other than exploring the possibility of Kara’s admission to Sherwood House.

15. The evidence is now available that Kara can be accepted to Sherwood House. Her situation is otherwise essentially unchanged since Re Kara (No. 6) except that she has continued to abscond.

16. Ms Janice Carroll's evidence indicates, and the Court accepts, that the Sherwood House program and accommodation represent Kara’s best chance of reliably receiving the medical, psychiatric and broader therapies that she needs in a safe environment. Ms Carroll explains that if a secure accommodation order is made for Kara, she will receive intensive therapeutic, medical and psychiatric support at Sherwood House. And she will also receive educational support when school resumes.

17. The Court is generally familiar with the structure of the accommodation and support that Sherwood House provides. But specifically, Ms Janice Carroll's evidence indicates Kara will be offered care and supervision by highly specialised staff. The focus will be on her safety and wellbeing and establishing her mental and emotional stability. Kara will have her own bedroom. Kara will receive consistent medical treatment and individual therapy which is presently not possible because of her absconding.

18. Though some changes are taking place at the several Sherwood House facilities, Kara will have access to a trauma recovery program, wraparound therapeutic services, and access to education, intensive casework and other supports. Her access to these services is likely to result in reduced risk to herself and to others, improved family connections, and greater participation in education and peer relationships. Moreover, it is likely also to reduce her dependency on emergency services, the likelihood of her presenting to hospital and the probable frequency of her contact with youth justice.

19. Of course, the regrettable price of these benefits for Kara is the making of a secure accommodation order, confining her if necessary, against her will at Sherwood House. The Court is mindful of the gravity of making such an order for Kara. But in the Court’s view, the clear weight of the evidence favours taking the opportunity for Kara to have these advantages, which are very likely to benefit her in the long-term, even at the expense of a temporary loss of liberty in the short-term.

20. The Court will make these orders. On the evidence adduced, the Court has confidence that a safe and therapeutic environment will be created in Sherwood House for Kara. In her evidence, Ms Carroll has disclosed allegations by children who had previously been placed at Sherwood house that they had suffered harm at the hands of Sherwood House staff members. Kara’s mother is familiar with these allegations and she raised them during her submissions to the Court. The Court is satisfied that steps have since been taken to neutralise the risk of such harm occurring to children placed at Sherwood House. This has occurred through the establishment of a Governance Group to which the Sherwood House program reports quarterly. In addition, an Official Community Visitor regularly visits the Sherwood House program.

21. Kara’s family’s acceptance of these orders is vital to their success. Ms Carroll herself has said that it is important “that Kara’s family supports her entry into the Sherwood program”. So, some accommodation of the family’s concerns has been moulded into the orders. Kara’s mother’s main concern was lack of regular access to Kara. She raised this as a central issue to give her confidence in supporting Kara’s placement at Sherwood House. Kara’s mother said she had prior experience of losing contact with Kara when Kara had been placed into care by officers of the DCJ. She expressed a fear of long-term loss of contact with Kara if she were to be securely accommodated at Sherwood House.

22. Ms Carroll explained the difficulties in the Court creating in advance a contact regime for Kara’s mother at Sherwood House. She expressed the view that it was best to let contact arrangements to be worked out flexibly, once Kara’s needs have been properly assessed after a short period at Sherwood house. The wisdom of Ms Carroll’s evidence cannot be doubted. But the Court was also mindful of the need to give confidence to Kara’s mother, so that the Sherwood House program is fully supported by Kara’s family. And the best way to give that confidence is to provide in the Court’s orders for some minimal level of contact to take place upon which Kara’s mother can rely. The Court will balance these competing considerations by making orders providing for a minimum level of weekly contact between Kara and her mother. This is not so frequent that it is likely to increase the level of contact that will interfere with the Sherwood House program in any event.

23. Ms Kelso’s instructions are not yet informed by recent contact with Kara. But Ms Kelso has also submitted that secure accommodation orders at Sherwood House should be made for Kara as they are in her best interests.

24. For these reasons, subject to one final matter, the Court will make secure accommodation orders based on the Court’s jurisdiction explained in cases such as Re Jules and Re Thomas.

25. But an immediate accommodation issue exists before Kara can be admitted to Sherwood House. If secure accommodation orders are made, it will first be necessary for Kara to undergo a period of medically supervised detoxification treatment. The available evidence suggests that she is presently using one or more illicit substances and will need detoxification.

26. Sherwood House is not equipped to manage her detoxification. The proposed treating psychiatrists for Kara at the Infant, Child and Adolescent Mental Health Service (“ICAMHS”) have indicated, through Ms Carroll’s evidence, that Kara must undergo medically supervised detoxification in a hospital environment before she goes into Sherwood House. Thus, a two-step process is required in the orders for her secure accommodation. First, she will need to be placed in a secure hospital environment. Second, when her detoxification is complete, she will need to be transferred to Sherwood House.

27. This first step created immediate issues for Kara that needed to be weighed in the balance and resolved before orders could be made. As earlier indicated, it emerged during the audio hearing that Kara was with her mother. This was a safer environment for her than many others she had recently chosen, outside the supportive accommodation that Safe Places provided.

28. It was indicated to the Court during submissions that if secure accommodation orders were to be made at Sherwood House, Kara would be taken to a hospital in the South-West Sydney Local Health District (“SWSLHD”), which was reasonably close to Sherwood House, so her detoxification treatment could commence. But it appeared that it could not be guaranteed that this hospital environment would be secure and would prevent her absconding. That presented the risk that she might return to the dangerous and abusive company of the drug dealer to whom she had been attracted in the past. At least at the present time, she is safer with her mother, although she may yet abscond.

29. The Court was reluctant to make orders which would forcibly take Kara away from her mother to a place from where she could escape into probable danger. Her mother strongly expressed a similar view and opposed the making of secure accommodation orders, unless Kara was placed in a situation for which she could not escape, unlike her Safe Places accommodation.

30. The Court sought to examine more closely the evidence that Kara could be securely accommodated during her detoxification treatment and would not be able to abscond from the hospital. Ms Janice Carroll gave impromptu oral evidence to supplement her affidavit of 7 January 2021, which had been read on the application. That evidence satisfied the Court that secure hospital accommodation could be found somewhere in the SWSLHD, probably at a secure psychiatric facility which was suitable for adolescents of her age. Based on that evidence the Court made orders which have been moulded upon the assumption presented by this evidence that the hospital facility to which she will be taken today will be secure.

31. Once again, the Court wishes to record its gratitude to all those who acted so quickly over the vacation period to find Kara accommodation at Sherwood House, to reduce the immediate risks to her and commence her long-term rehabilitation, and then to present this case. This includes Ms Carroll, her staff, officers of the plaintiff, counsel, solicitors and the Independent Legal Representative, Ms Kelso.

Conclusion and Orders

32. Accordingly, the Court makes the following orders, notations and directions:

1. Note that the proceedings are listed before Williams J on 29 January 2021.

2. Note that Order 2 made on 16 October 2020 continues.

3. Discharge with immediate effect Orders 4, 5, 6 and 7 made on 21 September 2020.

4. 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, either:

1. A medical facility at Campbelltown Hospital for assessment with a view to her admission to an inpatient detoxification program and, if necessary, for admission to and confinement within a medical facility in the South Western Sydney Local Health District and for her treatment in such an in-patient detoxification program;

2. Sherwood House;

3. Sherwood Cottage Englorie Park;

4. Sherwood Cottage Bradbury;

5. Finns Road property; or

6. Finns Hill property,

with premises (b) to (f) being collectively referred to in these orders as “the Sherwood House”, and authorises the use of reasonable force if and to the extent necessary to confine or return her to those premises.

(4A)   It is a condition of Order 4 that upon Kara’s admission to the Sherwood House that the plaintiffs will by and through the staff of Sherwood House:

1. Arrange for a contact visit with Kara by Kara’s mother within 48 hours of her arrival at Sherwood House and continuously thereafter no less than weekly, with the Kinchella Boys Home Aboriginal Corporation (“KBHAC”) having no less frequent contact with Kara;

2. Develop within 2 weeks of Kara’s arrival at Sherwood House and provide a plan for future contact between Kara’s mother and Kara during her time at Sherwood House (“the plan”); and

3. Thereafter do all things necessary to expeditiously finalise and implement the plan so far as reasonably possible in consensus with Kara’s mother to her future management including her contact with Kara’s mother and other visitors to Sherwood House.

5. 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.

6. That, until further order, the Court authorises “Kara” to be conveyed to Sherwood House, and the use of reasonable force if and to the extent necessary in order to convey her to Sherwood House.

7. Order that the Plaintiffs file and serve a report or evidence, on or before 27 January 2021, concerning Kara's progress including:

1. information in relation to any assessment for a medically supervised detoxification program;

2. information in relation to Kara undergoing a medically supervised detoxification program;

3. information as to Kara’s entry to the Sherwood Program;

4. information in relation to her progress in Sherwood House;

1. information as to Kara’s involvement with Youth Justice including any breach action taken by Youth Justice;

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

3. information in relation to any use of reasonable force on Kara, including the frequency, type and reason for such use;

4. information as to any contact between Kara and family members and other persons with whom Kara has a cultural connection during the course of her confinement;

5. information as to any support provided to Kara’s mother to support Kara during any transition to the Sherwood program; and

6. Information as to the operation of Order 4A.

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

9. These orders may be entered forthwith.

Amendments

27 January 2021 - Correction in the numbering of the orders

Decision last updated: 27 January 2021