Re: Mary
[2018] NSWSC 678
•09 May 2018
Supreme Court
New South Wales
Medium Neutral Citation: Re: Mary [2018] NSWSC 678 Hearing dates: 09/05/2018 Date of orders: 09 May 2018 Decision date: 09 May 2018 Jurisdiction: Equity - Protective List Before: McDougall J Decision: Make secure accommodation and ancillary orders.
Catchwords: CHILDREN - parens patriae jurisdiction - secure accommodation orders - balancing exercise between competing considerations - where orders would amount to serious limitation of personal liberty - where significant risk of harm to child if order not made - no evidence of appropriate alternatives - where proposed program offers a real prospect of stabilisation and recovery - orders made. Category: Procedural and other rulings Parties: Secretary Department of Family and Community Services (First Plaintiff)
Minister for Family and Community Services (Second Plaintiff)Representation: Counsel:
Solicitors:
S Christie (Plaintiffs)
Crown Solicitor (Plaintiffs)
File Number(s): 2018/145755
Judgment (ex tempore – revised 9 may 2018)
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HIS HONOUR: This is an application for secure accommodation orders in respect of a child who will be known as Mary. The Court's jurisdiction to make those orders is well recognised. It has been explained in a number of decisions of Judges of the Court. I see no point in rehashing what others and I have said.
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Put at the most basic level, the Court is faced with two balancing considerations. One is that the making of the orders will have the effect of restricting very seriously the child's liberty and autonomy. The other is that, absent such orders, there is a very significant risk of harm. Those factors come into play in this case.
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The child's history can only be described as sadly desolate. She is now 13, approaching 14. She was placed in out-of-home care in 2008, following a decision of the Children's Court on 29 August that year giving to the Minister parental responsibility for the child and her siblings. Since Mary was first placed in out-of-home care, she has moved no less than 29 times between 2008 and 2012, the moves being between long-term and respite placements. The evidence shows that the placements broke down due to various behaviours on Mary's part.
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In July 2012, Mary was placed with CareSouth, out-of-home carers, in the Australian Capital Territory. That broke down again because of Mary's behaviours.
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Subsequently, in October 2015, Mary moved to an intensive residential care home known as Binbeal in Bomaderry. Binbeal is managed by CareSouth. It involves restrictions on liberty, and attempted therapeutic treatment. Unfortunately, the move to Binbeal was not satisfactory. The records for the last half-year, from 30 September 2017 to date, show an enormous number of incidents in which Mary attempted to hit or otherwise assault staff, succeeded in doing so, verbally abused staff, absconded, caused significant property damage, engaged in sexualised and inappropriate behaviour, and otherwise behaved (not only towards staff but also towards members of the public and to police) in a totally unacceptable fashion.
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In consequence of some of those activities, Mary has been charged. She is due to face Court on 10 May 2018, although it would seem that is for mention only. In the meantime, because no appropriate and secure accommodation can be found for her, Mary remains in custody.
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The evidence includes medical reports which suggest that Mary suffers from complex post-traumatic stress disorder and reactive attachment disorder and attention deficit disorder, and that she exhibits features of behaviour that are consistent with her being on the autism spectrum disorder axis. It is also suggested that she has a borderline to mild intellectual disability, and mild dyslexia. It seems to be the case that those factors in part reflect the very sad circumstances of Mary's young life, and in part of course can be seen to be endogenous.
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The Sherwood program has been described in a number of judgments of this Court, and again I do not propose to repeat at any detail what I and other Judges have said. It involves a number of elements. The first is secure accommodation. That somewhat euphemistic description means, in substance, that a child in secure accommodation is kept there, willing or not, until such time as it is felt that the child can transition either to other accommodation or out of the program.
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Whilst a child is subjected to the Sherwood program, he or she will be offered a range of treatments and supports that are unavailable in the wider community (even leaving aside problems of physical violence, inappropriate sexual behaviour and the like). The intention is that the intensive therapeutic programs that are available will enable the child to progress through the program to the point where they can move back into the outside world.
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If the orders sought are made, one consequence is that Mary will be released from the custody in which she is presently detained into Sherwood House or one of the associated premises. It seems to me that that cannot be anything other than beneficial for her.
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In the present case, I am satisfied that there is a very high risk that if some sort of order of the kind now pursued is not made, Mary is likely to suffer harm and abuse. Of course, whilst she remains detained in custody, those risks may be minimised. But whilst she remains so detained, she will not receive the care and therapy that quite clearly she requires. And once (should it happen) Mary is released from custody, the risks will emerge.
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In those circumstances, it does seem to me that this is a case where the balancing exercise justifies the making of the orders sought. In coming to that conclusion, I take into account (although it is not determinative) that the solicitor representing Mary in the criminal proceedings has spoken to Mary about the Sherwood House program and that Mary has said that she would like to undertake it. The solicitor supports the making of the orders.
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For those reasons, and accepting as I do that the orders will have a very significant impact on Mary's freedom and autonomy, I think it is appropriate to make the orders sought.
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The orders will include an order that the matter come back before me or another Judge at some time in the future, and that before this happens, evidence be filed dealing with Mary's progress (to the extent that there is any) in the Sherwood program.
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Decision last updated: 15 May 2018
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