Re Reuben

[2018] NSWSC 143

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Re Reuben [2018] NSWSC 143
Hearing dates:	1 February 2018
Decision date:	01 February 2018
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   That, pending further order, the child known as "Reuben" be made a ward of the Court. 2.   That, pending further order, parental responsibility for "Reuben" be delegated to the Minister for Family and Community Services. 3.   Secure accommodation orders as per short minutes of order until 5pm on 16 February 2018.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW) s 76
Cases Cited:	Director General, Department of Community Services and Another; Re Thomas [2009] NSWSC 217 Director General, Department of Community Services; Re Jules [2008] NSWSC 1193 Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644
Category:	Procedural and other rulings
Parties:	Secretary, Department of Family and Community Services (First Plaintiff) Minister for Family and Community Services (Second Plaintiff) [Reuben's mother] (First Defendant) [Reuben's father] (Second Defendant)
Representation:	Counsel: M England (Plaintiff) M Levy (Solicitor) (Child)   Solicitors: Crown Solicitors (Plaintiff)
File Number(s):	2018/00034599
Publication restriction:	Pending further order, that there be no publication that would identify, or tend to identify, "Reuben" except for the purpose of the proper conduct of these proceedings (this order being made on the grounds specified in s.8(1)(a), (c), and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW)). This order applies throughout the Commonwealth.

EX TEMPORE Judgment

1. HER HONOUR: This is an application that has come before me ex parte in the Duty Judge list. It is an application by the Secretary of the Department of Family and Community Services and Minister for Family and Community Services (the plaintiffs) by notice of motion filed in Court today, seeking orders in relation to a ten-year-old child, who, for the purposes of these proceedings, will be referred to as Reuben.

2. The application includes, among other things, an application for an order that, pending further order, the child remain a ward of the Court and parental responsibility for the child be delegated to the Minister for Family and Community Services, as well as for a secure accommodation order of the kind made in Director General Department of Community Services and Another; Re Thomas [2009] NSWSC 217.

3. The child is presently under the parental responsibility of his parents. Shortly I will give some background in relation to the child’s family history. In circumstances where the child is presently under the parental responsibility of the child’s parents, if there is to be an order for secure accommodation as the plaintiffs seek, then I am satisfied that it would be necessary for the court in its inherent jurisdiction first to make an order that the child be a ward of the Court.

4. See in particular the decision of Brereton J in Director General, Department of Community Services; Re Jules [2008] NSWSC 1193. His Honour there made observations in relation to the parens patriae jurisdiction of the Court. As his Honour noted, the inherent jurisdiction permits the Court to oversee the welfare of those unable to attend to their own welfare and in particular that of children.

5. In Jules, Brereton J (at [8]) referring to the observation of Austin J in Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 (to the effect that the parens patriae jurisdiction was unaffected by the referral of powers to the Commonwealth in its application to children already in care or because this Court shares with the Family Court the statutory equivalent of the parens patriae jurisdiction), said that in either case the Court may make orders in connection with the welfare of children in or analogous to the parens patriae jurisdiction. At [9] Brereton J noted that the jurisdiction is a wide one and not limited to circumstances in which the child has been made a ward of the Court.

6. However, consistently with the observations in Re Jules where parental responsibility resides in the parents, it would be necessary first to make an order that the child be a ward of the court and to delegate parental responsibility to the Minister.

Background

7. The factual background, which I will briefly summarise, is that Reuben was removed from his mother’s care at the age of seven months, in May 2008, after his mother and her parents were charged by police with offences relating to drug possession and dealing.

8. Reuben was placed with his father at the time and Children’s Court proceedings were commenced by the Secretary of the Department of Family and Community Services (in the position then known as the Director General, Department of Family and Community Services).

9. Reuben’s mother was sentenced in relation to the charges to eight months’ imprisonment for supply of a prohibited drug and thirty-two months’ imprisonment for the supply of a prohibited drug.

10. Final orders were made in the Children’s Court in February 2009 allocating parental responsibility for Reuben to the Minister for Family and Community Services until he attained the age of eighteen. In March 2009, Reuben was removed from his father’s care and placed in foster care.

11. In December 2011 the decision was made that Reuben, and two of his siblings, be restored to the care of his mother. A 12-month assessment process had been completed regarding restoration of Reuben to his mother’s care by that time.

12. The decision was made on the basis that his mother had by then been able to demonstrate various lifestyle changes and, in particular, that she was no longer using drugs and was no longer engaged in criminal activity.

13. On 11 April 2011 an application was filed in the Children’s Court of New South Wales which petitioned for leave to rescind the orders that had been made for parental responsibility in February 2009. Ultimately, final orders were made on 19 July 2012 placing Reuben under the shared parental responsibility of the Minister for Family and Community Services and the mother for a period of six months and, after expiration of that time placing Reuben under the supervision of the Secretary for a further six months.

14. In around May 2013, a report, pursuant to s 76 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) was made, which appears to have been positive, in relation to the appropriate care for Reuben by his mother.

15. Unfortunately, since then Family and Community Services have received a number of reports in relation to Reuben (and his siblings). Those reports and the protection concerns arising therefrom have been detailed in the affidavit of 1 February 2018 by Jacqualyn Margaret Kerr, a Manager Casework employed by the Department of Family and Community Services at the [xxx] Community Services Centre.

16. In summary, the investigation that has been carried out by Family and Community Services over the period since then indicates that Reuben does not have a fixed address or place to sleep each night, he is often seen on the streets in the early hours of the morning and in the company of older people and has had to be returned to his mother’s home; in his mother’s home, he has been exposed to serious incidents of domestic violence and also incidents of drug use. There were reports of other incidents of concerns, including potential exposure to sexual abuse (see [41]) affidavit). Between 15 February 2017 and May 2017 a further eleven “Risk of Significant Harm” reports were received in relation to Reuben.

17. The reports received by Family and Community Services indicate concerns of educational neglect, criminal behaviour, inadequate supervision, homelessness, medical neglect and drug use by both Reuben’s parents. [Redacted]

18. [Redacted]

19. Family and Community Services have been provided with information that indicates that Reuben smokes cigarettes and cannabis and has used methamphetamine (“ICE”) on a regular basis. Reuben [Redacted] associates with known drug users frequenting locations where drug dealing is occurring.

20. The reports indicate that Reuben has met with sex offenders and been exposed to sexualised behaviours. He has used sexually explicit language and the affidavit details occasions on which he has demonstrated sexualised behaviours inappropriate for a ten-year-old.

21. Of concern is the fact that Reuben, although ten years old, is illiterate. During 2017 he attended school for approximately thirty days. Reuben is reported to have engaged in behaviour that is uncaring of his own safety, including playing “chicken” with cars, running the streets alone at night with young people, physically assaulting police, engaging in truant behaviour, climbing onto the school roof and refusing to come down, and the like.

22. There have been reports of inappropriate sexual behaviour towards Reuben and also concerns that Reuben has been given vodka mixed with Coke by his mother.

23. There was an incident where Reuben was given no or inadequate medical care when he had a broken arm (affidavit of Ms Kerr, [38]). Reuben has dental problems. His teeth are black and rotting. He has had some assessment in relation to the extent of treatment necessary but has not had a follow-up assessment or other intervention in that regard. There is also evidence as to occasions when Reuben was hungry and without food.

24. Reuben has displayed antipathy and fear towards both police and the Department of Family and Community Services officers.

25. There is evidence that an attempt to refer Reuben to an organisation providing case work support for children and young people (Youth Hope) was declined due to Reuben’s risk level being deemed too high (affidavit of Ms Kerr, [48]).

26. There is also evidence as to Reuben’s behaviour having adversely affected an application by his mother in relation to rental accommodation. In relation to the family background, the whereabouts of Reuben’s siblings is also unknown in that they also have no fixed address. There has been marked difficulty on the part of Family and Community Services in locating Reuben in the [xxx] area from time to time.

27. The evidence is that Reuben is in what could colloquially be described as a highly developed “fight or flight” mode.

28. The plaintiffs are of the opinion that the possibility of Reuben interacting with any Community Services program otherwise than through a secure care accommodation facility is remote.

29. The plaintiffs are of the view that there is no other safe option than a secure care accommodation order at the moment because of Reuben’s highly itinerant and transitional behaviour and high need risk, as a young person who has been known to smoke ICE.

30. It is submitted that there is a real need for him to be admitted to a therapeutic placement and for him to be amongst peers in a safe and stable environment so that he can obtain treatment and education.

31. There is in evidence a snapshot of a mobile telephone text from Reuben’s mother stating that “we would not be able to keep him safe because he will run away and we will never find him”. The plaintiffs understand that view to be one expressed, not simply that the mother considers that the Department will not be able to keep him safe but also as to her view as to the inability of the family to do so.

32. Another matter put forward is that Reuben’s parents have demonstrated anger towards the Department. [Redacted]

33. The plaintiffs have raised, in compliance with their duty of candour on an ex parte application of this kind, matters that might stand against the making of an order of this kind. The first of those matters is to note that parental responsibility resides with Reuben’s parents and they have not consented to the application. In that regard, it is submitted that it is appropriate for interim orders to be made until the family’s position in relation to the application can become known, largely because it is the family circumstances that pose real risks for the child of harm by another family member. The plaintiffs argue that the evidence is that Reuben is not safe in either parent’s care in relation to violence and drug use and is effectively homeless.

34. The second point is that this is an application for Reuben to be made a ward of the Court in circumstances where the plaintiffs recognise that this is a serious application and they candidly concede that Reuben is a child who has “fallen through the cracks” (in that there was not appropriate investigation/follow-up). However, they submit that in Reuben’s relatively short life he has demonstrated that he is not a child who will be safe in the community without care orders being made.

35. It is submitted that there is a real question as to whether any community-based carer will take Reuben because of his risk behaviours and it is noted that the level of supervision and monitoring he will require will be higher than might otherwise be the case.

36. There is representation on this application by a Legal Aid solicitor. Due to the ex parte nature of the application and the urgency of the application, the Legal Aid solicitor has understandably not been able to confer with Reuben. Nevertheless, there was no submission made to the contrary of the secure accommodation orders being made. It appears to be accepted by the independent solicitor that Reuben is in a position of risk. I was informed that if orders of this kind are made, the parents will be notified of the making of the application (but not provided with the evidence in relation to the application) and they will be joined as parties to the proceedings at which stage their position in relation to the application will be made clear.

37. The proposal is for orders to be made that would enable Reuben to live in the therapeutic secure residential program managed by Family and Community Services called [Redacted]. It is not necessary in these reasons to elaborate on the nature of the program.

38. I was informed at the hearing of this application that Reuben was then presently in the care of community case workers was en route to the secure residential premises (presumably in anticipation of the present application).

Determination

39. It is clear that there is a lack of adequate supervision in relation to Reuben and significant concerns about lack of medical and dental care, as well as his association with strangers. He is clearly a child at serious risk of harm with a high need for intervention.

40. The plaintiffs submit, and I accept, that this is an exceptional case requiring secure accommodation and care orders because of the following factors: Reuben is at high risk in relation to his own behaviour and his association with those who engage in drug use, [Redacted] and exposure to drug users and sexual offenders risks him becoming criminalised, or more criminalised than at present; behaviours exhibited by him towards other people, both his mother and others outside the home; and the fact that he is effectively homeless.

41. It is submitted, and I accept that this is significant, that the police have concerns about his criminal behaviour and have already cautioned him in relation to his criminal behaviour.

42. The reasons that the application is made for Reuben to reside in the [xxx] program are that he is at risk owing to the lack of suitable accommodation, inadequate parental supervision and the likelihood of re-exposure to drug use and domestic violence in the home of his parents. He is at serious risk of harm from the people with whom he associates, including drug users and sellers, and also from his own use of illegal drugs. He is at risk of harm without intervention and, if he is not placed in care, it is extremely unlikely that he will re-engage in his education or participate in any allied program. I accept that those risks are real and that the concerns are well-founded.

43. I accept that Reuben requires a therapeutic secure residential program that will combine a focus on safety, skills development and education to provide him with stability and security for a successful treatment plan to be developed and implemented. On the evidence, community officers have been in a position to establish at least a level of rapport with Reuben over the last number of months and it is hoped that will be able to be continued after he is part of the [xxx] program.

44. I am well conscious of the fact that orders of the kind that are sought involve a serious incursion upon and deprivation of personal liberty. They are not lightly to be made. However, I am of the view that they are necessary in this case. I am satisfied, notwithstanding that they will involve significant deprivation of Reuben’s liberty that they are in the best interests of Reuben to provide him with the ability to remove himself from the risk influences presently in his life, to provide him with secure accommodation in as close to a family context as is possible in the circumstances, and to provide him with an opportunity for protection and protection of his welfare and of his education.

45. In the circumstances I will make orders in accordance with the short minutes of order that have been handed up.

46. There is one further thing to note in relation to those orders. As noted earlier, it is not proposed to serve on the parents those orders or the evidence in these proceedings at this stage. I am satisfied that in the circumstances outlined above, [Redacted] it is appropriate at this stage not to have the evidence served on the parents.

47. I add to these reasons that leave was given for the summons to be amended to join the parents as defendants; time for service of the amended summons was abridged to 3 February 2018; and I gave leave that service of the summons and notice of motion on the parents to be in a redacted form (to remove details of the secure residential premises to which Reuben is being admitted).

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Amendments

23 May 2018 - Redactions made to parties on coversheet and 15, 17, 18, 19, 26, 32, 37, 40, 42, 43, 46 to allow publication

Decision last updated: 23 May 2018