Re Miki (No 2)

[2025] NSWSC 369

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Miki (No 2) [2025] NSWSC 369

Hearing dates:

16 April 2025

Date of orders:

16 April 2025

Decision date:

16 April 2025

Jurisdiction:

Equity

Before:

Meek J

Decision:

Orders made granting leave to the Secretary to transition child from secure accommodation, for temporary continuation of secure accommodation, for reporting and for ancillary matters.

Catchwords:

CHILD WELFARE — Parens patriae — Application for secure accommodation orders — Secure accommodation orders made in November 2022 for neurologically affected child exhibiting self-harming behaviours and at significant risk of sexual abuse — Progression of child through a protective care and transformative program designed to restore the child to life in the community having had the benefit of appropriate health and educative supports — Transition leave sought and ordered

CHILD WELFARE — Parens patriae — Secure accommodation orders — Protective care and transformative program explained — Care supports and their aims described

CHILD WELFARE — Parens patriae — Secure accommodation orders — Transition considerations explained — Leave to transition necessarily to be assessed by reference to viable placement alternatives — Proposed placement remote from child’s former carers — No closer acceptable alternative placement readily available — Balancing of risks associated with move to proposed distant placement against risks associated with delaying transition — Diminishing returns to be gained by keeping child within the existing program and facility — Further confinement with potentially unduly prolonged delay might be counter-productive — On balance, transition is appropriate — Nature of the protective jurisdiction enables the Court to stand ready to meet exigencies of setbacks if risks materialise

Cases Cited:

Director-General, Department of Human Services; Re Thomas [2010] NSWSC 1525

Texts Cited:

Johnson, Claudia Alta, A White House Diary (2007, University of Texas Press)

Lewis, C. S., The Abolition of Man, or, reflections on education with special reference to the teaching of English in the upper forms of schools (1943, Oxford University Press)

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
B Dean (Plaintiffs)
D McMullen (solicitor advocate) (Separate Child Representative)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)
Legal Aid NSW (Separate Child Representative)

File Number(s):

2022/337287

EX TEMPORE JUDGMENT (REVISED)

Introduction

1. HIS HONOUR: History is replete with pearls of wisdom regarding the importance of nurturing children, providing them with loving care, protecting them as need be, teaching and explaining truths to them, equipping them with life skills, stimulating their imaginations and so inspiring them to thrive and prosper.

2. CS Lewis, the famed British literary scholar and novelist gave some insight into one of the many aspects of guiding the growth and instruction of children, observing, “The task of the modern educator is not to cut down jungles, but to irrigate deserts.” ^[1]  

   1. C. S. Lewis, The Abolition of Man, or, reflections on education with special reference to the teaching of English in the upper forms of schools (1943, Oxford University Press) at 9.

3. The application before the Court involves an important developmental step of a teenager known by the pseudonym Miki who was, by my orders 30 months ago, admitted to therapeutic secure residential facility (facility) owned and managed by the Department of Communities and Justice (DCJ) and who now is sought to be transitioned out of the facility to other accommodation, having achieved appropriate targets in a holistic program aimed at fostering and achieving the laudable purposes I have outlined above.

4. My orders made on 10 November 2022 were on the application by the Secretary of DCJ (Secretary) and the Minister for Families and Community and Disability Services (Minister), and included secure accommodation orders, non-publication suppression orders and related orders facilitating Miki’s placement into a program, described below. She was then aged 13 and is under the care of the Minister until she attains the age of 18 years.

5. The orders were made in a context of Miki having various diagnosed disorders, self-harming behaviours, issues of placements and various other risks to Miki's welfare.

Placement into program

6. Miki's early history was compromised. She was assumed into care in early 2010 following an incident which saw her hospitalised. Upon her release from hospital, she was placed with DJC authorised carers in southern New South Wales who, for all intents and purposes, she regarded as being her family.

7. Consequent upon the orders, Miki was welcomed into a detailed protective care and transformative program designed to restore the child or young person (CYP) to the community having had the benefit of appropriate health and educative supports (program) at the facility.

8. The program has four phases as follows:

1. An establishment phase – which tends to be an acclimatising process where the CYP becomes familiar with the program and carers.

2. An engagement phase – as the CYP emerges from the initial phase, there is an engagement with various support persons focusing on targeted therapeutic interventions, functional skills and educational goals for the CYP. The engagement phase assists the CYP to recognise how their behaviour and actions affect themselves and others, and enables the CYP to respond well to supports.

3. A future focus phase – once certain core therapeutic goals have been met and the CYP is able to more consistently engage with their family and have a greater understanding of their history and background, there is a less restrictive program and the CYP is given the opportunity to build practical resilience. By this time, there is ordinarily a reduction of high-risk behaviour.

4. A transition phase – once some practical resilience has been built, the CYP is able to transition to family or other community-based placement.

9. The progression of the CYP through the program is not subject to precise timing. Rather, it is determined by the achievement of clinical goals by the CYP and, therefore, it necessarily varies in any given case.

10. During the program, Miki has had the benefit of what I will broadly describe as vital care supports. Without being exhaustive, they include:

1. Trauma treatments at which at various times she has had the assistance of an occupational therapist, speech pathologist and social worker.

2. Spot sessions which enabled her participation in programs such as the Zoo Program, increasing her time in the community.

3. Therapy sessions which are semi structured, with the goal of promoting positive social development.

4. Psychiatric support and medication.

5. Reference person meetings with a case worker (sometimes in person and sometimes by FaceTime).

6. Behavioural intervention support plans specifically directed at fostering and developing independent living skills.

7. Education with a view to providing abilities for a Living Skills Certificate.

11. The initial transfer to and detention of a child in a program is not intended to be a permanent placement. Ultimately there is an expectation that the secure accommodation orders will be discharged at a propitious time: e.g. Director-General, Department of Human Services; Re Thomas [2010] NSWSC 1525.

12. Specifically, it is envisaged that the child having engaged with various support persons, received various medical, dental and other therapeutic aids and care, provided with educational and functional skills, and had contact with family and other carers, will reach a stage of greater self-awareness and an age-appropriate practical life resilience.

Progression through program

13. In the 30 months since the initial listing before me, there have been 16 subsequent appearances in which Mr Dean (counsel for the Secretary) and Ms McMullen (a separate child appointed in Miki's interests) have provided detailed updates regarded Miki's progress. Most of the progress reports have been provided by Annabelle Taylor, a case worker for Miki since November 2023, and an ISS case worker Maree Schultz, who has been involved in the casework for Miki even before the initial orders.

14. Naturally her progress has not necessarily been uniform. Nonetheless, it has had a good positive trajectory. Miki, a vibrant teenager, has transitioned well through the program. I have had the privilege of meeting with her in the company of Mr Dean, DCJ representatives and Ms McMullen.    

15. The Court is very considerably reliant on the assistance of DCJ and the practitioners in reporting and providing wise counselling and guidance. I pause to record the very considerable assistance the Court has received from Mr Dean and Ms McMullen in that regard and also the detailed affidavits, with accompanying exhibited information, that have been provided by Ms Taylor.

Proposed transition out of program

16. Orders are now proposed for Miki to transition out of the program.

17. Various options for transitioning have been raised and explored since at least January 2024. The possibility of Miki returning to the pre-program carers, whilst considered, has not been embraced for reasons which have been explained to the Court, but which I need not detail.

18. Miki has an NDIS plan which is current at least until July this year. She has been eligible for intensive therapeutic care, significant disability (ITC-SD) placement.

19. Initially it was envisaged that a placement would not be outside the relevant intensive support service district within the Community Services Division of DCJ. In particular, a proposed order had been raised for the transition of Miki from a DJC funded arrangement to an NDIS funded arrangement with the same service provider.

20. In October 2024, the proposal for individual placement arrangement for Miki was declined by the Executive District Director. A referral for an ITC-SD placement was accepted by DCJ in early 2025, with a different placement provider.

21. An ITC-SD placement is a residential placement catering to a very limited cohort of children who have extremely high support needs relating to significant complex and often multiple disabilities.

22. Throughout the various mentions of this matter, Ms McMullen has faithfully recounted to me Miki’s growing desire to leave the facility.

23. On 26 February 2025, I was provided with an update regarding the proposed transition. It is anticipated that Miki will live with another young person in the new placement (which I will refer to as Newhome). Newhome is located in Central New South Wales, being over 400 kilometres and five hours travel by road from her family and pre-program carers' location.

24. Mindful as I was of Miki’s pining to leave the facility, I indicated that I wished to be comfortably satisfied that the proposed placement should be a helpful place for her to further her life development. I observed it is a truism in life is that the people one associates with have significant impact on how one develops in life, either keeping one from harm or risking one into harm.

25. I sought particular information regarding the transition to ensure, as best as could be arranged, that it was a smooth transition that was likely to endure for Miki’s benefit. Without being prescriptive, I mentioned that consideration should be given at a suitably practical and granular level to various considerations so that Miki will have a clear understanding of what lies ahead of her, including addressing her awareness of what life will be like in the proposed new environment including the Newhome in which she will live, her new housemate, the home’s relative location to the school she will attend, how she will get to and from school, and who might be available as a cohort of friends to engage with.

26. Suffice it to say that I am satisfied that careful attention has been paid to the planning of Miki's transition.

27. As at this morning, it is proposed that Miki will be informed of her placement change by Ms Schultz via a social story. Further, Ms Schultz will accompany Miki, driving tomorrow to the placement home location to meet with the Newhome team leader, Miki's future case worker and her proposed housemate, and to see and explore the Newhome before returning back to the secured accommodation tomorrow evening.

28. Specifically, it is proposed that Miki will move to live in the Newhome a week from today.    

29. On 9 April 2025, various confirmations were received in respect of Miki's placement.

30. First, confirmation was received from the Department of Education Office Placement Panel, confirming that Miki has been successful in her application to be placed in an intellectual disability IO/IS local school.

31. Secondly, an email was received from the service provider regarding support referrals for Miki, including to work with an occupational therapist, a speech pathologist, exercise physiologist and for behavioural support.

32. Thirdly, a carer handover meeting between Newhome, the program operators and the District ISS took place. Importantly, the need for ongoing behaviour planning was discussed.    

33. Miki has recently turned 16 years of age. One of the important functional skills in life is the ability to adapt to change.

34. Claudia Alta “Lady Bird” Johnson commented that “children are likely to live up to what you believe of them”. ^[2] The remark reflects the importance of measured, but nonetheless positive encouragement, from those that engage with children and announced faith in or a sense of trust in a child being able to respond well. Importantly, from the child's perspective, encouragement liberates the child to be able to flourish in a safe and loving environment.

    2. Claudia Alta Johnson, A White House Diary (2007, University of Texas Press).

35. With the best will in the world, successful transition is not always guaranteed. Sometimes new placements do not work out and things go awry. There are, in this case, some potential risks which I have considered, including possible isolation of Miki in the proposed placement area, which is considerably distant or remote from the residence of her carers, family and the local environments in which Miki has known and lived in for the majority of her young life, both pre-program and throughout the program.

36. Choices in life, and particularly within the protective jurisdiction, are informed by the availability and suitability of alternatives to a proposed course of action. Here, choices in placements are very limited. In fact, realistically there is no other prospect of an appropriate viable alternative placement within the immediate future in the area in which she was placed prior to the program or indeed in any nearby region.

37. Ms McMullen has assisted the Court and expressed some concern about some of these risks, including potential isolation, transfer of care arrangements and managing contact with Miki's family.

38. Ms McMullen spoke with Miki this morning and, not unnaturally, she has expressed some frustration of the uncertainty of what lies ahead of her, particularly with the timing of any transition.

39. Ultimately, the risks of change and whether some possible setbacks might materialise, must be balanced against risks associated with delaying transition. Mr Dean has observed that there is not a lot more that Miki can achieve in secure accommodation. Commendably, she has achieved certain skill targets. There is ever diminishing residue of returns to be gained by keeping Miki within the existing program. Indeed, potentially unduly prolonged delay might reach a point in which further confinement for her may be counter-productive and compromise some of the capabilities she has strived so hard to achieve.

40. Mr Dean has confirmed that DCJ and the funded service provider will do what they can to mitigate identified transition risks. My expectation is that in light of the perseverance of Miki leading to her thriving in the program and the commendable work of staff and carers in supporting her, that the transition will be fruitful, and that Miki will prosper.

41. For the above reasons, I propose to make the orders sought by the Secretary and Minister and, in particular, granting leave to the Secretary to transition Miki from secure accommodation.

42. The nature of the protective jurisdiction is that many decisions are, practically speaking, ‘interlocutory’ in character in the sense that they may be subject to review or further consideration as the exigencies of the case may require. If for some reason, setbacks, or even if some failures, occur, I am confident that they will not define Miki’s destiny or ultimately stymie her progress. I have seen important traits engendered and manifested in her, including resilience, eager hope and a yearning to succeed.

43. In any event, the nature of the protective jurisdiction, broad, adaptable and humane as it is, enables the Court to stand ready to facilitate completion of Miki's transition and to meet exigencies of setbacks if unmanageable risks materialise.

Orders

44. The orders of the Court are as follows:

1. Orders 1, 5 and 14 made on 10 November 2022 have continuing operation.

2. Note that orders 6, 7 and 8 made on 10 November 2022 have continuing operation.

3. Orders 3 and 4 made on 9 February 2023 have continuing operation.

4. Grant leave to the Secretary to transition Miki from secure accommodation.

5. Direct the Plaintiffs to file and serve a report or evidence, on or before 4pm on 30 May 2025 concerning Miki’s progress including:

1. Information as to her progress in the secure premises;

2. Information as to her progress in her ITC-SD placement;

3. A detailed report from any treating psychiatrist, psychologist, and general medical practitioner, if available;

4. Information as to her engagement with any Occupational and Speech therapist that has or is planned to occur;

5. Information as to her progress in engaging with relevant service providers, including information as to any assessments conducted;

6. Information as to other current legal proceedings involving Miki;

7. Information as to her education and vocational opportunities;

8. Information as to her community access;

9. Information as to arrangements for contact with her family and other significant persons;

10. Information as to the frequency, and types, of all incidents; and

11. Information as to her social supports.

6. The parties have liberty to apply to relist the matter on 24 hours’ notice.

7. Stands the proceedings over to ­­­12 June 2025 at­­­ 9am before Justice Meek.

8. Orders that these orders be entered forthwith.

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Endnotes

Amendments

20 April 2025 - Coversheet amended

[23] - "the carer's" amended to "her family and pre-program carers'"

[34] - "Johnston" amended to "Johnson"

fn 2 - "Jonhson" amended to "Johnson"

Decision last updated: 20 April 2025