Re Neil

[2021] NSWSC 446

Supreme Court

New South Wales

Medium Neutral Citation:

Re Neil [2021] NSWSC 446

Hearing dates:

28 April 2021

Date of orders:

28 April 2021

Decision date:

28 April 2021

Jurisdiction:

Equity - Duty List

Before:

Henry J

Decision:

Make secure accommodation and ancillary orders.

Catchwords:

CHILD WELFARE – care proceedings – parens patriae jurisdiction – orders sought for secure accommodation and care for young person – where extensive mental health history, past contact with law enforcement and placement history – where currently remanded in juvenile detention – whether appropriate to make orders – orders necessary for young person’s care and protection and promotion of their welfare

Legislation Cited:

Mental Health Act 2007 (NSW)

Cases Cited:

Re Elliott [2018] NSWSC 679

Re Kara [2020] NSWSC 1083

Re Sally [2011] NSWSC 1696

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; [1992] HCA 15

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
C McGorey (Plaintiffs)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)

File Number(s):

2021/98482

Publication restriction:

The orders made today prohibit the publication or disclosure of information that would identify, or tend to identify, the identity of the young person in these proceedings (known as “Neil”).

Judgment – ex tempore (revised)

1. HER HONOUR: This is an application by the Secretary, Department of Communities and Justice (DCJ) and the Minister for Families, Communities and Disability Services (Minister) (together the plaintiffs) for secure accommodation and care orders, a non-publication and suppression order and ancillary orders in relation to a young teenage boy, who I will order be referred to in these proceedings as “Neil”.

2. The plaintiffs’ application is made by Summons filed on 9 April 2021 and is brought under the Court’s parens patriae jurisdiction. It has become urgent as Neil is currently remanded in juvenile detention with the next mention scheduled in May 2021. The plaintiffs’ witness is also unavailable to give evidence from 29 April 2021 to late May 2021.

3. In support of the application, the plaintiffs rely on an affidavit of Mr Rick Winters, Manager Client Services of the Western Intensive Support Services unit within the Community Services Division of DCJ, and a lengthy exhibit. I have also had the benefit of written and oral submissions from plaintiffs’ Counsel and the views of Mr Raymond Clack, the proposed legal representative for Neil, who appeared at the hearing.

Background

4. Neil is 13 years old. He identifies as Aboriginal and as belonging to the Wiradjuri Nation.

5. Soon after Neil was born, he was placed in the care of a woman, whom I refer to as “JB”. Neil remained with JB until February 2013, when she was deemed unable to care for him due to medical issues. Between 2007 and 2013, DCJ received approximately eight risk of significant harm (ROSH) and non-ROSH reports indicating concerns about JB’s capacity to care for Neil.

6. Neil was briefly in his mother’s care in February 2013 until she advised DCJ that she could not care for him due to the escalation of his behaviours. Apart from this, Neil has had no contact with his mother and five maternal
   half-siblings. His birth father is unknown.

7. In February 2013, Neil was assumed into care. The Children’s Court found that he was a child in need of care and protection and made an interim order allocating parental responsibility to the Minister. A final order giving the Minister parental responsibility for Neil was made on 11 April 2014.

8. Between February 2013 and February 2016, Neil had 12 placements with authorised carers, each of which broke down for various reasons, including reasons relating to his needs.

9. In early 2016, he was placed back in the home of JB and her daughter.

10. In January 2018, the placement with JB broke down and Neil was placed in alternative care arrangements until January 2019. A number of offers of placements for Neil were made and then withdrawn due to safety concerns and an inability to meet his needs.

11. Between 2016 and mid-2018, DCJ received approximately 21 ROSH and non-ROSH reports indicating concerns about Neil’s physically abusive and violent behaviour towards his carers, his absconding from their home, and other high-risk behaviours, including sexualised and predatory behaviours, substance abuse and detentions by police.

12. In May 2020, Neil was approved to enter into a residential placement with Safe Places, a not-for-profit organisation that assists young people at risk with intensive therapeutic support and supervision in a residential care setting.

13. Neil has an extensive history of contact with law enforcement. His frequent absconding and Safe Places’ inability to prevent him from leaving that placement have often brought him into contact with police and led to his arrest for breach of bail.

14. Between October 2018 and February 2021, Neil was remanded 30 times for various periods at different Youth Justice Centres (YJCs). His criminal history includes common assault, aggravated assault, destroying or damaging property, breaching bail, larceny, drink driving and theft. One of the more recent incidents involved a police pursuit of Neil in a vehicle with others and the vehicle crashing, putting himself and others at very serious risk of harm.

15. As noted above, Neil is currently being held in juvenile detention at Reiby YJC. He has been there since February 2021. Neil has not attended school in a normal educational environment with peers since 2017. He has more recently been attending a school located within the grounds of the Reiby YJC.

16. While in care and juvenile detention, Neil continued to have contact with JB, both face-to-face and, more recently, regular weekly contact over the phone. JB is concerned that if Neil is released from juvenile detention and returns to live on the North Coast, he is at significant risk of harm, and even death, due to his involvement with hard drugs.

17. In addition to the above, the evidence indicates that Neil has a considerable mental health history. He has been involved with mental health services and practitioners from as early as July 2016 and, in 2017, he was admitted to the in-patient Child and Mental Health Service unit under the Mental Health Act 2007 (NSW) following threats to JB’s daughter. The medical reports in evidence identify that Neil has been diagnosed as suffering from attention deficit disorder, oppositional defiant disorder, post-traumatic distress disorder, complex developmental trauma, sensory processing difficulties, chronic general anxiety disorder, nicotine addition, sleep disorders, pacification-related over-empowerment syndrome and pragmatic speech difficulties. He has also attempted serious self-harm on occasion.

Plaintiffs’ application

18. The principles that govern the exercise of the parens patriae jurisdiction were explained by Brereton J (as his Honour then was) in 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; [1992] HCA 15.

19. The parens patriae jurisdiction is a broad one but is to be exercised cautiously. The foundation of the jurisdiction is the need to act for the protection of those who cannot care for themselves. In exercising the jurisdiction, the paramount consideration of the Court is the promotion of the health and welfare of the person the subject of the orders.

20. The jurisdiction extends to making orders about the custody and care of children and young people, including orders of the type sought by the plaintiffs which provide for Neil to be held securely and, if necessary, for reasonable force to be used to restrain him in order to prevent injury to himself or others. The exercise of the jurisdiction in that manner has been invoked by other judges of this Court: see, for example, Re Sally [2011] NSWSC 1696; Re Elliott [2018] NSWSC 679 and Re Kara [2020] NSWSC 1083.

21. The plaintiffs submit, and I accept, that there are exceptional circumstances in this case which warrant the Court making the secure care orders they seek in the exercise of its parens patriae jurisdiction.

22. Neil has experienced significant trauma and dislocation in his life from the numerous care placements and attempts with specialist community based residential providers. His mental health diagnoses and trauma manifest in severe emotional and behavioural dysregulation, with bursts of physical violence that impacts his functioning while in care, in the community, in school and in managing interpersonal relationships. His increasing dangerous risk-taking behaviours, particularly his substance abuse and violent and impulsive acts, impose a significant risk to himself and the community. This is demonstrated by the regular periods of detention in juvenile detention centres which has cumulated in his most lengthy detention to date in Reiby YJC since February 2021.

23. While conscious that secure care orders would be a significant impost on his liberty, the evidence satisfies me that Neil is at a very high risk of harm due to his behaviours and if he were to be released into the community, he would be at an unacceptable risk of serious injury or, through misadventure, death. I am also satisfied that it is in Neil’s best interests for him to receive intensive, and likely prolonged, intervention in a secure setting and that Sherwood House is an appropriate program for him.

24. The Sherwood House program is a specialist program designed to treat children who have suffered severe trauma and exhibit extreme dysregulated behaviours that put themselves and others at risk. It provides therapy while ensuring behavioural boundaries. Neil will have access to psychologists and psychiatric reviews to which he would not otherwise have access in the juvenile detention system. It will provide him with an opportunity to receive significant interventions in a safe environment.

25. The program also provides for secure accommodation which means that Neil will be kept there, willing or not, until such time as it is felt that he can transition either to other accommodation or out of the program. In other words, the risk of Neil absconding and causing harm to himself and others in the community should be minimised.

26. According to Mr Winter’s affidavit, Neil had indicated, strongly, that he did not wish to go to Sherwood House. As the plaintiffs submitted, that a boy so young is accustomed to detention and shows a preference for it is of concern. At the hearing, Mr Winters gave evidence that he has spoken to Neil more recently about going into the program from detention and that Neil seems to accept that Sherwood House is an option for him.

27. Although not yet formally appointed as his legal representative or having spoken to Neil, Mr Clack supports the plaintiffs’ application, noting that if the secure care orders were made, they will be subject to regular review by the Court. JB is also supportive of Neil being placed in Sherwood House.

28. There is availability for Neil to move to the Sherwood House program at the end of the first week of May 2021 and the Children’s Court dealing with Neil’s criminal matters is on notice of the application. If the secure care orders are made, it is expected that the Children’s Court will make orders providing for Neil’s immediate release from detention directly into the custody of authorised persons to transport Neil to Sherwood House for entry into the Sherwood Program. Subject to the outcome of his criminal matters, it is proposed that Sherwood House program staff escort Neil from Reiby YJC to Sherwood House after consultation with the Reiby YJC staff and police.

29. I accept that caution is required to be exercised in the parens patriae jurisdiction. The Court is faced with having to balance the effect of orders that restrict very seriously Neil’s liberty and autonomy against the significant risks to Neil if the orders are not made. Based on the evidence before the Court, I am satisfied that the interference with Neil’s liberty is necessary for his care and protection and the promotion of his welfare and will make the proposed secure care orders.

30. For these reasons, and subject to some changes that I have discussed with plaintiffs’ Counsel and with Mr Clack, I make the orders in the terms of the short minutes proposed by the plaintiffs which I have initialled and will place with the file.

**********

Decision last updated: 30 April 2021