Re Miki

[2022] NSWSC 1550

Supreme Court

New South Wales

Medium Neutral Citation:

Re Miki [2022] NSWSC 1550

Hearing dates:

10 November 2022

Decision date:

10 November 2022

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Secure accommodation orders made.

Catchwords:

CHILD WELFARE – Parens patriae – Application for secure accommodation orders – Neurologically disabled child exhibits self-harming behaviours and is at significant risk of sexual abuse – Orders made

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105

Cases Cited:

GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277

Re Rosie [2022] NSWSC 1001

Category:

Procedural rulings

Parties:

Secretary, Department of Communities and Justice (First Plaintiff)
Minister for Families and Communities (Second Plaintiff)

Representation:

Counsel:
A Tembe (solicitor) (Plaintiffs)
Solicitors:
Crown Solicitor’s Office (Plaintiffs)

File Number(s):

2022/337287

Ex Tempore Judgment

1. HIS HONOUR: This is an urgent application by the Secretary (Secretary), Department of Communities and Justice (DCJ) and the Minister for Families and Communities and Disability Services (Minister) for secure accommodation orders and non‑publication suppression orders and other orders in relation to a young girl aged 13.

2. The nature of the proceedings is such that the name of the girl ought not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277. I will refer to the young girl as “Miki”.

3. The application is made by a summons which has been filed in Court today and brought under the Court’s parens patriae jurisdiction. In support of the application the plaintiffs rely upon an affidavit of Dana McLay affirmed 9 November 2022 and an exhibit DM–1 to that affidavit.

4. Mr Tembe has appeared on the application and provided written submissions in support of the application.

5. The principles that guide the exercise of jurisdiction, particularly in relation to applications for secure accommodation orders, were outlined by Brereton J in Re Thomas [2009] NSWSC 217.

6. Ms McLay is a manager, casework with the Intensive Support Service (ISS), I will describe it as a unit, within the Community Service Division of the DCJ.

7. Miki was assumed into care in 2010 and final orders were made by the Children’s Court of New South Wales in June 2011.

8. The ISS has held case management responsibility for Miki since early September 2022. Ms McLay supervises another caseworker, Ms Schultz, who has been involved in Miki’s care since late September 2022.

9. The reason for the application has been borne out of a number of recent incidents.

10. The affidavit of Ms McLay outlines the family connections for Miki and also relevantly her child protection and placement history.

11. In late August 2022 Miki was admitted to a hospital after repeatedly exhibiting self-harming behaviours and threatening to commit suicide. Throughout September 2022 there have been a number of other incidents which include self-harming behaviour and matters, because of their nature, would clearly prove distressing for Miki.

12. In late September 2022 Miki absconded from her placement and when approached by police became aggressive. She was transported to hospital.

13. In late September 2022 Miki assaulted a carer and also assaulted an ambulance officer who attended to assist with the incident. She has had further hospitalisation in October 2022. Her behaviour continued to be unstable, including threats to stab herself with a knife.

14. In mid-October 2022 Miki absconded while she was on an outing in the community. Five days later she attempted self-harm to her eyes, forehead and upper thighs.

15. The self-harming has continued.

16. The history of self-harming has been chronic during the course of this year. The DCJ received 21 risk of harm (ROSH) reports between February 2022 and the end of October 2022 in relation to Miki. In summary the concerns reported were serious self-harming, risk taking behaviour, suicidal ideation, inappropriate sexual behaviour and significant risk of sexual abuse from others.

17. Miki was under the care of a psychiatrist from January to March 2022.

18. There have been subsequent reports from professionals who have commented upon Miki and her conditions.

19. In late October 2022 one professional described Miki as a neurologically developmentally disabled young girl who demonstrates sexual vulnerability and at risk behaviours in the context of early abuse, breakdown of long-term placement and current social disability.

20. The affidavit of Ms McLay sets out other details regarding the psychological health, the general health and education.

21. She has had some contact, both telephone and face-to-face, with some of her siblings.

22. More recently the police have charged Miki with two charges of common assault in relation to the incidents that I described earlier involving a worker from the care facility and the ambulance officer.

23. Miki is required to attend at the Local Court in November 2022.

24. New South Wales Legal Aid is providing Miki with some assistance in relation to this.

25. The plaintiffs consider that in the circumstances that I have partly described above but more particularly detailed in the affidavit of Ms McLay that Miki has complex care needs which cannot be met safely in the out-of-home care system and that unless there is a secure accommodation order there is no other adequate way to keep Miki safe at present apart from psychiatric units which are not appropriate for her long-term care.

26. The proposal is that Miki be taken into the Sherwood House program. The Sherwood program is a 16 bed therapeutic secure residential service owned and managed by DCJ.

27. There are four separate residential units within the program and a total of 14 children and young persons in residence across the four sites.

28. Details of the program are outlined in the affidavit of Ms McLay.

29. As I have noted in another matter Re Rosie [2022] NSWSC 1001 it is a serious matter to restrain the liberty of a person.

30. Consideration to doing that involves balancing the effect of the orders that restrain Miki’s liberty against the risks that I have mentioned.

31. On balance I am currently satisfied that the proposed interference with her liberty and the detention order is both necessary and also likely beneficial for her welfare.

32. In the circumstances I have determined to make the orders sought.

33. One of the orders includes a non-publication order.

34. The timing for that order has been discussed with Mr Tembe.

35. The proposal is that the order persists until 2034. I did discuss with Mr Tembe the reason for that and why the non-publication order should persist beyond the age of 18.

36. Mr Tembe referred me to provisions of s 105(1A)(a) of the Children and Young Persons (Care and Protection) Act 1998 (NSW). In the circumstances I am minded to accept the timing in relation to that which suggests that it will persist until the child is aged 25.

37. Orders made within the parens patriae jurisdiction are inherently susceptible to variation depending on the circumstances of the person whose interests the Court is considering.

38. The making of the orders in the form proposed should not preclude an application by Miki, or some other appropriate person, at a later point in time seeking to vary that timing. Nonetheless I am persuaded at the moment that timing is appropriate.

39. The orders of the Court are:

1. The proceedings be heard in a closed court.

2. That the plaintiffs have leave to file the Summons in these proceedings dated 9 November 2022 (“the Summons”), and Notice of Motion in the forms initialled by Meek J and the Affidavit of Dana McLay affirmed 9 November 2022, in Court.

3. The Summons and Notice of Motion be returnable instanter before Meek J and heard ex parte.

4. The child be separately represented and it is requested that Legal Aid NSW arrange such representation.

5. Leave is granted to the Plaintiffs and the Separate Representative who is appointed for “Miki” to provide to the legal practitioner and/or legal service who is to represent “Miki” in any criminal proceedings in which she is the Defendant, a copy of orders and/or transcripts made by this Court in these proceedings, and/or any documents filed in these proceedings with respect to “Miki”, for the purpose of any criminal proceedings where “Miki” is a defendant.

6. The proceedings be known as “Re Miki” and that the child the subject of the proceedings be known as “Miki”.

7. Pursuant to s. 7 of the Court Suppression and Non-publication Orders Act 2010, and upon the grounds set out in s. 8(1)(a), (c), and (e) of that Act, there be no publication of information that would identify, or tend to identify “Miki” as the subject of these proceedings, except for the purpose of:

1. the proper conduct of these proceedings;

2. any communication with NSW Police, NSW Ambulance and NSW Health services regarding “Miki’s” safety, well-being or any criminal investigation involving “Miki”;

3. an application by Miki’s legal representative seeking bail or to vary bail conditions and for such an application to be heard and determined;

4. any review of “Miki” by the Mental Health Tribunal;

5. an application to the New South Wales Civil and Administrative Decisions Tribunal for a guardianship and/or financial management order;

6. an application to the National Disability Insurance Scheme for assistance;

7. the proper conduct of any criminal proceedings in which “Miki” is a Defendant,

8. the proper conduct of any proceedings in which “Miki” is the subject of those proceedings, and

9. identifying any claim that could be made by or on behalf of “Miki”.

8. Pursuant to ss. 11 and 12 of the Court Suppression and Non-publication Orders Act 2010, order 9 apply throughout the Commonwealth and until [x] April 2034.

9. Until further order, leave is granted to the Secretary, DCJ or the Secretary’s nominee(s) to detain “Miki” at either:

1. Sherwood House; or

2. Sherwood Cottage, Englorie Park; or

3. Finns Hill House, or

4. Finns Road Cottage

(Collectively, referred to as “the secure premises”) and, to use reasonable force if and to the extent necessary to ensure that she remains at those premises or to return her to those premises.

10. The Court authorises “Miki” to be conveyed to the secure premises, and the use of reasonable force if and to the extent necessary in order to convey her to those premises.

11. All officers of the NSW Police Force assisting in the transfer of “Miki” from Albury to the secure premises using whatever assistance may be necessary, and using reasonable force if and to the extent necessary, are authorised to restrain “Miki” to prevent her from injuring herself and/or others.

12. Until further order, the staff engaged or employed by the Secretary or the Secretary’s nominee(s) at the secure premises, using whatever assistance may be necessary, and using reasonable force if necessary, are authorised to restrain “Miki” in order to prevent her from injuring herself and/or others.

13. The Plaintiffs are to file and serve a report or evidence, on or before 18 November 2022, concerning “Miki’s” progress including:

1. Information as to her move to the secure premises;

2. Information as to her progress in the secure premises; and

3. Information as to the frequency, and types, of all incidents including the use of any reasonable force or restraints.

14. Leave is granted to the Plaintiffs to provide to Youth Justice NSW a copy of orders and/or transcripts made by this Court in these proceedings.

15. The parties have liberty to apply on 24 hours’ notice.

16. The orders made in the proceedings today be entered forthwith.

17. The proceedings are listed before ­­­­­­­­­­Meek J on 22 November 2022 at 9:00am.

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Decision last updated: 15 November 2022