Re Rosie (No 2)

[2022] NSWSC 1750

Supreme Court

New South Wales

Medium Neutral Citation:

Re Rosie (No 2) [2022] NSWSC 1750

Hearing dates:

25 July 2022, 5 August 2022, Further evidence and submissions 9 September 2022 and 13 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Equity - Duty List

Before:

Meek J

Decision:

Joinder and representation orders made — Requirement for a tutor dispensed with

Catchwords:

CHILD WELFARE — parens patriae — Secure accommodation orders and related orders made in relation to young girl — Nature of secure accommodation orders and consideration of initial orders and evidence and subsequent review of orders and the basis for that

CIVIL PROCEDURE — Joinder of parties — Consideration of Court’s approach to joinder — Purposive approach informs joinder — Consideration of approaches in the Protective and parens patriae jurisdiction and identification of relevant guides regarding joinder of child and young person on the one hand and persons associated with the child and young person on the other hand

CIVIL PROCEDURE — Parties — Persons under legal incapacity — Dispensation with requirement for tutor — Approach to dispensation informed by purposes of parens patriae jurisdiction and whether appointment of a tutor would have utility in achieving anything for the child or young person that is not already being achieved by separate independent representation

CHILD WELFARE – parens patriae — Consideration of appointment of separate representatives in the interests of the child and young person — Distinction between roles of a direct legal representative and independent legal representative — Consideration of statutory models and other approaches regarding representation of children — Statutory models informative but not binding on the Court in the exercise of its inherent parens patriae jurisdiction

Legislation Cited:

Adoption Act 2000 (NSW)

Child Protection Legislation Amendment Act 2015 (NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil Procedure Act 2005 (NSW)

Court of Protection Rules 2017 (UK)

Court Suppression and Non-publication Orders Act2010 (NSW)

Family Law Act 1975 (Cth)

Guardianship Act1987 (NSW)

Mental Capacity Act 2005 (UK)

Mental Health Act 1959 (UK)

NSW Trustee and Guardian Act2009 (NSW)

Supreme Court Rules 1970 (NSW)

Surrogacy Act 2010 (NSW)

Trustee Act1925 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

A & B v Children's Court of Victoria [2012] VSC 589

Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462

Binetter v Binetter [2022] NSWCA 169

C v W (No 2) [2016] NSWSC 945

Department of Community Services v Y [1999] NSWSC 644

Director General, Department of Community Services v Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220

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

Director-General, Department of Community Services; Re Thomas [2009] NSWSC 1490

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308

George v Children’s Court of New South Wales (2003) 59 NSWLR 389; [2003] NSWCA 389

GR v Department of Communities & Justice [2020] NSWSC 1622

GR v Secretary, Department of Communities & Justice; Minister for Families, Communities & Disability Services [2021] NSWCA 301

GR v Secretary, Department of Communities and Justice [2020] NSWSC 892

GR v Secretary, Department of Communities and Justice [2021] NSWCA 267

GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157

Grace and Rita [2002] NSWSC 1

Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369

Holt v Protective Commissioner (1993) 31 NSWLR 227

In Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 WLR 1141

Iskandar v Mahbur [2011] NSWSC 1056

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

Mao v AMP Superannuation Ltd [2018] NSWCA 72

Masterman-Lister v Brutton & Co (2003) 1 WLR 1511

P v NSW Trustee and Guardian [2015] NSWSC 579

Re Alexis [2011] NSWSC 1545

Re Anita [2014] NSWSC 1352

Re Anita [2015] NSWSC 312

Re Bella [2013] NSWSC 1034

Re Beth (2013) 42 VR 124; [2013] VSC 189

Re FrancesandBenny [2005] NSWSC 1207

Re Helen [2010] NSWSC 1560

Re Jayden [2006] NSWSC 1428

Re Jayden [2007] NSWCA 35

Re Jessica [2001] NSWSC 1207

Re Kara (No 6) [2020] NSWSC 1857

Re Liam [2005] NSWSC 75

Re Sally [2009] NSWSC 1141

Re Sally [2011] NSWSC 1696

Re Vernon [2011] NSWSC 1222

Ross v Lane Cove Council [2014] NSWCA 50

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case)) (1992) 175 CLR 218; [1992] HCA 15

Smith v NRMA Insurance Ltd [2016] NSWCA 250; (2016) 77 MVR 480

Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

Texts Cited:

Baker, Ashton, Marin et al, Court of Protection Practice 2020 (20th ed, 2020, LexisNexis (UK))

Charles J, “Facilitating participation of “P” and vulnerable persons in Court of Protection proceedings” – Practical Guidance (3 November 2016)

Legal Aid Commission of NSW, “Care and Protection: Working with Children – A Guide to Best Practice for Children’s Legal Practitioners”, 2020

Lindsay J, “NCAT’s Protective Jurisdiction in Context” (Paper), NCAT Guardianship Division Training Seminar, 14 June 2022

Lindsay J, “Parties, Property and Notice of Proceedings in Succession Law Cases” (Paper), College of Law Seminar, 20 February 2019

Gordon Ashton, Justice Baker and Judge Marc Martin, Mental Capacity: Law and Practice (4th ed, 2018, LexisNexis (UK))

Court of Protection (UK) – Practice Direction 1A

Court of Protection (UK) – Practice Direction 7A

Practice Note SC EQ 13 – Adoptions

Ritchie’s Uniform Civil Procedure NSW (LexisNexis Butterworths)

The Law Society of New South Wales, “Representation Principles for Children’s Lawyers” (4th ed, 2014)

United Nations Convention on the Rights of the Child 1989

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
B J Dean (Plaintiffs)
G Moore (Separate Legal Representative)

Solicitors:
Crown Solicitor’s Office (Plaintiffs)
S Luke (Separate Legal Representative)

File Number(s):

2022/217845

JUDGMENT

Introduction

1. HIS HONOUR: On 25 July 2022, I heard an urgent application by the Secretary (Secretary), Department of Communities and Justice (DCJ) and the Minister for Families, Communities and Disability Services (the Minister) for secure accommodation orders and other related orders in relation to a young girl, known by the pseudonym Rosie.

2. The proceedings are protective proceedings invoking the Court’s parens patriae jurisdiction and have been mentioned on subsequent occasions being 5 August 2022, 9 September 2022 and 13 December 2022.

3. This judgment addresses the following three issues which in Rosie’s case require attention:

1. the joinder or non-joinder of Rosie to the proceedings;

2. the question of appointment of a representative for Rosie; and

3. the extent of suppression and/or non-publication orders regarding Rosie.

4. In addressing the above-mentioned issues, it is appropriate to give some context to the matter.

Secure accommodation orders

Nature of a secure accommodation order

5. Secure accommodation orders essentially involve the Court being asked to authorise an appropriately interested party to locate, detain and transfer to a facility, for a period of time, a child or young person (CYP) who is exhibiting or engaging in behaviours, such that the CYP presents a great risk of harm to both him or herself and to others in the community.

6. A consequence of such a CYP’s condition is that his or her needs are often complex and cannot be adequately and thoroughly assessed and supported whilst they remain in the community.

7. The purpose of a secure accommodation order is protective, both for the CYP and the community. The intent is that with proper care and attention at the facility, including for the CYP’s health and education, the CYP’s conduct will settle and hopefully the CYP will gain a resilience such that the CYP may be returned to family or another community-based placement and enjoy an enhanced life in the community.

8. The legal framework within which such orders occur involves the Court’s parens patriae jurisdiction and various legislative provisions.

9. A significant part of the legislative framework is the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act).

10. Under the Care Act a “child”is a person who is under the age of 16 years. A “young person”is a person who is aged 16 years or above but who is under the age of 18 years: s 3 Care Act.

11. There are statutory limitations under the Care Act (as noted below) which limit the extent to which the Children’s Court can make an order for emergency care and protection of a CYP. It is in this context that the parens patriae jurisdiction is invoked in such cases.

12. The jurisdiction is exceptional and must be exercised with great caution. Generally, the greater the interference with the liberty of the CYP, the greater the caution that is required: Re Sally [2009] NSWSC 1141 per Slattery J at [57] (Re Sally (No 1)); Director General, Department of Community Services v Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220 (Re Thomas (No 1)) at [35] per Brereton J (as his Honour then was).

13. The extent of the parens patriae jurisdiction, insofar as it applies in connection with secure accommodation orders, is addressed by Brereton J (as his Honour then was) in Re Thomas (No 1).

14. The jurisdiction is not constrained by technicalities and is a separate jurisdiction to the supervisory jurisdiction that is committed to the Supreme Court by way of prerogative orders or statutory appeals: Re Thomas (No 1) at [22]; Re FrancesandBenny [2005] NSWSC 1207 at [17] per Young CJ Eq (as his Honour then was).

15. Historically, whilst the principal function of wardship was limited and focused on the property of a minor, the jurisdiction expanded and today covers the protection and welfare of CYPs more generally. The effect of making a CYP a ward of the Court (in circumstances where that occurs) is that the Court’s consent is required for all important steps in the CYP’s life and the Court’s power supersedes the rights and powers of parents and other guardians: Re Thomas (No 1) at [24].

16. A particular aspect of the parens patriae jurisdiction, as is evident from Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case)) (1992) 175 CLR 218; [1992] HCA 15, is the authorisation of acts and decisions in respect of CYPs which fall outside the scope of ordinary parental decision-making powers.

17. Conceptually, this is distinct and separate from the exercise by the Court of parental responsibility in circumstances where parents or guardians do have decision-making powers and are faced with decisions which fall within the scope of such parental decision-making, but the parents either cannot or will not appropriately do exercise them: Re Thomas (No 1) at [27].

18. An order for the indefinite confinement of a CYP in secure premises that the CYP cannot leave of his or her own volition is regarded as being beyond the ordinary scope of parental responsibility and requires the sanction of the Court as parens patriae: Re Thomas (No 1) at [28].

19. Essentially, that is so because the effect of such an order is to deprive the CYP of his or her liberty, which may constitute a violation of the CYP’s human rights.

20. As explained by Brereton J (as his Honour then was) on one view the making of such an order is an exception to human rights conventions (e.g. the Convention for the Protection of Human Rights and Fundamental Freedoms). On another view, such an order is not an exception per se but, rather, is a necessary consequence of an exercise of parental responsibility for the express purpose of the protection and promotion of the child’s welfare and therefore does not contravene the child’s human rights: Re Thomas (No 1) at [38] referring to In Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 WLR 1141.

21. On any view of the matter, such orders are truly exceptional and involve a very serious interference with the liberty of the CYP such that to the extent that there is any doubt as to whether it falls within the bounds of decision-making arising in ordinary parental responsibility, or, on the other view, if it falls outside the scope of such decision-making, it is appropriate that the Court rather than the person(s) committed with parental responsibility authorise (by formal order) the decision: Re Thomas (No 1) at [38].

22. The allocation of parental responsibility for a CYP to the Minister (in this case Rosie) and the statutory obligation on the Secretary to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the CYP (s 34 Care Act) substantially explains why the Secretary and the Minister are the plaintiffs in these proceedings.

23. Relief in the form of secure accommodation orders, in light of the above, will often occur where there is no reasonable alternative: Re Sally (No 1) at [62]. The relief, in any event, is or should be carefully moulded to the circumstances of each particular case: Re Liam [2005] NSWSC 75 at [29] per McDougall.

Care Act context

24. The general role of the Minister is to promote a partnership approach between the government, non-government agencies, families, corporations, business agencies and the community in taking responsibility for and dealing with CYPs who are in need of care and protection under the Care Act: s 15.

25. The principal role of the Secretary is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of the Care Act: s16.

26. By legislative amendment in 2015, prior reference to the “Director-General” was changed to be a reference to the “Secretary”: Child Protection Legislation Amendment Act 2015 (NSW) Sch 3 [1].

27. A CYP may seek assistance from the Secretary: s 20.

28. Importantly, if the Secretary forms the opinion, on reasonable grounds, that a CYP is in need of care and protection, the Secretary is to take whatever action is necessary to safeguard or promote the safety, welfare and well-being of the CYP: s 34(1).

29. Under the Care Act the Children’s Court may make an order for the emergency care and protection of a CYP if it is satisfied that the CYP is at risk of serious harm: s 46(1).

30. The order, while in force, places the CYP in the care responsibility of the Secretary or the person specified in the order: s 46(2)

31. However, the order has effect only for a maximum period of 14 days and whilst there is provision for such order to be extended, it may only be extended whilst the order is in force and then only once for a further maximum period of 14 days: s 46(3)-(4) Care Act.

32. Where a CYP is removed from the care of his or her parent or parents under Pt 1 of Ch 5 of the Care Act (dealing with emergency protection and assessment), the CYP is to be kept at a place approved by the Minister and the Secretary has the care responsibility for the CYP: s 49(1).

33. The Children’s Court may make an order allocating all aspects of parental responsibility, or one or more specific aspects of parental responsibility, for a CYP who it finds is in need of care and protection, to various people including the Minister, for a period specified in the order: s 79(1).

34. In their roles the Minister and Secretary are assisted by others, and the Secretary may request assistance or services from certain other agencies: see s 17.

35. A number of agencies are authorised to provide such out-of-home care.

36. There are provisions which facilitate the objects of the Act including obligations of cooperation and exchange of information: ss 18 and 19.

37. Each of the Minister and Secretary are permitted to delegate certain of their functions.

38. The Minister may delegate to the Secretary or any other person any of the Minister’s functions (other than the power of delegation): s 249(1).

39. The Secretary may delegate to any person any of the Secretary’s functions (other than the power of delegation): s 250(1).

40. Each of the respective delegates may sub-delegate to any person any functions delegated by the Minister or Secretary if they are authorised in writing to do so respectively by the Minister and Secretary in any given case: ss 249(2), 250(2).

41. It is evident from the various provisions of the Care Act that each of the Minister and the Secretary have distinct roles but roles that are in many respects complementary to or in tandem with one another in ensuring the safety, welfare and well-being of CYPs.

The recovery and detention of the CYP

42. Additionally, there may be orders which direct assistance of the New South Wales Police Force to assist in the transfer of the CYP to the facility.

43. The basis on which those orders are made have been the subject of some judgments. It is not the purpose of this judgment to address the jurisdictional basis for such orders.

44. Nonetheless, where assistance is provided it is done, or ought to be done, in a discrete way. This is achieved by, inter alia, officers wearing plainclothes and using unmarked police carrier vehicles.

The facility

45. The secure accommodation (Secure House) is a 16 bed therapeutic secure residential service owned and managed by the DCJ.

46. The facility at Secure House is the base for a protective care and transformative program designed to restore the CYP to the community having had the benefit of appropriate health and educative supports.

47. The program is designed to reduce the risk that the CYP engages in unacceptable conduct and risk-taking behaviour, and enhance the probability that the CYP will be able to care for him or herself and relate to others in a more resilient way than they had been able to do previously.

48. The program is operated in partnership with NSW Health and the NSW Department of Education.

49. At present the program consists of four separate residential units housing up to 16 children.

50. The program offers treatment, education, containment and support to the children.

51. Whilst there is the “usual” configuration in terms of numbers of children at the separate residential units, there is flexibility associated with that configuration such that the number of children in each unit or cottage can be increased or decreased to best meet the needs of the children in the residence.

52. Staffing for the program is made up of two basic staff categories working as one team namely care staff on the one hand and security staff on the other.

53. The care staff and security staff are supported and managed by a program manager and a house manager. Staffing levels are flexible and are adjusted according to the needs of the group.

54. The NSW Department of Education provides and facilitates a variety of education programs for the CYPs in the program.

55. Psychiatrists from the Child and Adolescent Mental Health Services Unit provide psychiatric services to CYPs in the program through the public health system.

56. An official community visitor appointed by the Minister regularly visits the program and, via the principal official community visitor, reports directly to the Minister not via DCJ.

The program

57. The transfer to, and detention of a CYP in Secure House is not intended to be a permanent placement.

58. There are four program phases.

59. The phases are as follows:

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

1. 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; and

2. a transition phase – once some practical resilience has been built the CYP is able to transition to family or another community-based placement.

60. The progression of CYPs through the program, whilst typically falling into the above four phases, is not subject to precise timing. There is no specific time frame for moving between the phases. Rather, this is determined by the achievement of clinical goals by the young person and, therefore, necessarily varies in any given case.

61. Nonetheless, evidence regarding the program suggests timing for the phases of the program may involve the following periods:

1. establishment – typically lasting between six weeks to 3 months;

2. engagement – may last for up to 14 months; and

3. future focus – may be up to a period of about 24 months from the time of inception.

Initial orders

62. The approach to the Court in this case was made by the Secretary and the Minister as plaintiffs (which it seems will often be the case).

63. On an initial ex parte application for a secure accommodation order by the Secretary and the Minister, a representative is often appointed to act for the CYP and that representative is informed about the application and on future occasions appears for the CYP: T2 (25 July 2022).

64. There is some difference in approach between judges as to whether the CYP is named as a party to the proceedings. In some instances, particularly initially an urgent circumstances no particular order is made for joinder of the CYP. Nonetheless in many instances and even initially, the CYP is joined as a party.

65. Irrespective of whether or not the CYP is joined, an order for separate representation is almost invariably made and Legal Aid arrange for that representation: T2 (25 July 2022).

66. The initial application, because of its urgency is ordinarily made to the Equity Duty Judge.

67. The reason as to why the Secretary seeks a Court order for detention of the CYP, as distinct from the Secretary (albeit having parental responsibility for the CYP) making the decision, is as noted above, that an order for the indefinite detention or confinement of a CYP in secure premises is something that is outside the scope of parental responsibility.

68. The application was supported by a summons, notice of motion, an affidavit in support and draft of proposed orders.

69. The summons, notice of motion and a draft of proposed orders outlined orders commonly sought in such proceedings.

70. In such cases the summons, whilst naming the Secretary and the Minister as plaintiffs, might or might not name any defendant.

71. The summons sought substantive orders, namely, orders granting leave to the Secretary, the Secretary’s nominee and or staff to:

1. take Rosie to the secure premises and transfer her between any such premises;

2. detain Rosie at Secure House or adjacent specified houses or cottages (secure premises) using reasonable force (if necessary) to do so; and

3. restrain Rosie in order to prevent her from injuring herself and others.

72. The notice of motion in the proceedings sought:

1. a number of procedural orders facilitating the above-mentioned substantive orders;

2. orders connected to non-publication or suppression of material or other matters which would have the tendency to identify Rosie;

3. the making available of transcripts or other materials in these proceedings for the plaintiffs or other legal representatives acting in Rosie’s interests in criminal proceedings; and;

4. a direction for the provision of a report providing information regarding Rosie’s move to and progression in the secure premises and in respect of any incidences of significance, including the use of restraint whilst at the secure promises and other information relating to arrangements for her education, assessments and contact with her family.

The initial evidence

73. On the making of the application, the Secretary and Minister will ordinarily provide evidence giving context to the reason for the urgency of the application and necessity for the detention and transfer orders.

74. Often that is provided by the Manager Casework within Metropolitan Intensive Support Services (Metro ISS), a unit within the Community Service Division of the DCJ.

75. Within the care structure there may be a number of caseworkers who report to the Manager Casework within Metro ISS. The Manager Casework reports to a Manager Client Services who in turn reports to the Director ISS.

76. The relevant caseworker or manager casework will often have been able to access the DCJ files and records relating to the CYP and his or her family for the purpose of providing the Court with information.

77. The evidence in the proceedings will often outline various background details including:

1. the family composition of the CYP;

2. the CYP’s current placement and whereabouts;

3. the CYP’s child protection and placement history;

4. important aspects of the CYP’s physical and mental health including any relevant significant recent treatment;

5. CYP’s contact with his or her family, cultural identity, education and current supports;

6. the Secretary’s concerns and reasons for the application including the risks to the CYP both by the CYP’s own behaviour and risks arising from the CYP remaining within the general community and risks to the community sometimes from the behaviour of the CYP.

Subsequent review

78. In relation to listing procedures in Re Anita [2015] NSWSC 312 (Re Anita (No 2)), Robb J stated at [34] as follows:

In the exercise of the parens patriae jurisdiction in relation to cases involving children and young persons at extreme and intractable risk of harm to themselves and others, individual judges accept a particularly high level of personal responsibility for the exercise of the jurisdiction on an ongoing basis, in which the individual judge acts as the instrument of the Crown’s power to protect children and young persons, who are incapable of looking after themselves. It is reflected in the custom that, when an individual judge is called upon initially to make orders in relation to a child or young person, that judge will strive, as much as circumstances permit, to continue to exercise the Court’s jurisdiction personally in respect of that child or young person, until the matter concludes. Generally, the judge exercises personal control over the matter, notwithstanding the Court’s usual listing procedures.

79. I agree with those observations.

80. Once the application is made to that judge as a matter of sensible, but not inflexible, practice the matter will ordinarily be listed again before the judge who has initially dealt with the matter.

81. That is essentially for several reasons which arise broadly out of the nature of the jurisdiction.

82. First, matters can arise urgently which require immediate judicial attention. In that context, it is somewhat generally helpful for a judge who has had some background to the matter to address any immediate issue.

83. Secondly, within some weeks after the initial listing, it is appropriate that the Court receive an update regarding the detainment and transport of the CYP in question to a secure residential facility operated and/or managed by the DCJ

84. Thirdly, the initial judge may provide some continuity over the supervision of the implementation of the secure accommodation orders which may in any given situation need to be adapted as the CYP transitions through the various phases of the program: T4 (25 July 2022).

85. Fourthly, the effectiveness of the systems depends upon the human participants in them complying with such systems and protocol: Director-General, Department of Community Services; Re Thomas [2009] NSWSC 1490 (Re Thomas (No 3)) at [4] per Brereton J (as his Honour then was).

86. Occasionally, there are lapses in care and supervision. For this reason the Court keeps close supervision on implementation of secure accommodation orders. The initial judge dealing with the matter will often be better placed to make ongoing assessments in relation to the welfare of the CYP: Re Thomas (No 3) at [7].

87. Fifthly, as is evident from what I have described above, where particular progress has been made by the CYP in the program and there is transition ultimately either to family or some other community-based placement the Court will ordinarily be asked to discharge the orders: Director-General Department of Human Services; Re Thomas [2010] NSWSC 1525 (Re Thomas (No 4)).

88. Having made that observation, there is no particular necessity for the matter to come back before the initial judge. In the event that the initial Judge is unavailable to deal with a matter that might urgently arise to such matters are dealt with by either the Duty Judge or Protective List Judge.

89. As is evident from what I have noted above, in the event that a secure accommodation order is made, the timing for proceedings being brought back before the Court varies but is often within a period of 2 to 3 weeks.

90. The subsequent evidence once the proceedings are relisted after the initial transfer will often include details of:

1. the transportation of the CYP to Secure House;

2. the CYP’s transition into the program;

3. the current other CYP residents of the program;

4. behavioural or other incidences that have arisen relating to the CYP since he or she arrived at Secure House; and

5. updates regarding the CYP’s health, education, development, family visits and contact and, where relevant, updates regarding criminal charges.

91. Some observations are also made by the relevant caseworker regarding whether the caseworker supports the continuation of the secure care orders.

Rosie’s situation

92. In Rosie’s case, the summons named the Secretary and the Minister as plaintiffs and did not name any defendant.

93. Specifically, the notice of motion sought an order that Rosie be separately represented and a request that Legal Aid NSW (Legal Aid) arrange such representation: order 8.

94. However, neither the summons nor the notice of motion in terms sought orders that Rosie be a party to, or joined to, the proceedings.

95. Some insight as to the reason why, at least initially, an order might not be made joining the CYP as a party to the proceedings is that ordinarily a person under a legal incapacity (which includes a child under the age of 18 years) may not commence or carry on proceedings except by a tutor: r 7.14(1) Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

96. Further, unless the Court orders otherwise, the tutor of a person under a legal incapacity may not commence or carry on proceedings except by a solicitor: r 7.14(2) UCPR.

97. On 27 July 2022, Monique Hitter, Deputy CEO of Legal Aid NSW filed a notice of appearance as separate representative for Rosie.

98. On 5 August 2022, I directed that there be submissions essentially as to the nature of Rosie’s role in the proceedings and her representation.

Evidence

99. Mr Dean on behalf of the Secretary and Ms Luke as Separate Legal Representative for Rosie helpfully provided submissions. I will refer to those submissions as respectively “SecS” and “SLRS”.

100. In support of the submission, Ms Luke provided and relied upon an affidavit of Katie Kelso affirmed 7 September 2022.

101. Ms Kelso is the acting deputy director of the Family Law Division of Legal Aid NSW.

Availability of legal assistance for CYP

102. The Family Law Division of Legal Aid NSW has a care and protection service which provides advice, minor assistance, extended legal assistance, duty appearances and undertakes casework in care and protection matters for CYPs including in respect of proceedings in this Court.

103. Legal Aid NSW has certain policies in relation to the representation of children in Supreme Court matters including in the parens patriae jurisdiction.

104. One of the policies (5.16.14) provides that Legal Aid is available to CYPs subject to Legal Aid being satisfied that the matter meets two tests being, relevantly, a merit test and an availability of funds test.

105. Anecdotally, as perhaps might be expected, Ms Kelso is not aware of any applications made for representation of children in secure accommodation orders where Legal Aid has been refused.

106. Legal Aid NSW is usually notified by the Crown Solicitor’s Office (CSO) of new applications for secure accommodation orders before the applications are made.

107. If there is no conflict of interest, and if it is otherwise considered to be appropriate, an in-house solicitor will seek to appear on behalf of the CYP on the first occasion. If that is not possible the CSO will normally notify Legal Aid NSW of the orders made.

108. The matter will be allocated to an in-house practitioner for the ongoing representation of the CYP.

109. If there is a conflict of interest in Legal Aid NSW acting, the matter will be allocated out to a solicitor on the Legal Aid NSW Care and Protection Panel.

110. The in-house Legal Aid NSW practitioners undertaking child representation work have undertaken specialist independent children’s lawyer training produced by National Legal Aid.

111. The in-house practitioners who undertake work within the parens patriae jurisdiction are provided with training opportunities specifically focused on secure accommodation matters.

112. For a private practitioner to be appointed to the Panel he or she must have at least five years of post-admission experience in care and protection work or otherwise specialist accreditation in children’s law.

113. The separate representative makes arrangements to meet with the CYP by contacting the relevant delegate within the DCJ and requesting to do so.

114. The lawyer will then meet with the CYP usually at the secure accommodation at appropriate points of time in the proceedings and independently of the Secretary/Minister or their representatives.

115. There are guidelines issued by the Law Society of New South Wales regarding both working with children and child representation.

Submissions

Joinder of Rosie

116. Each of Mr Dean and Ms Luke submit that it is appropriate that Rosie be joined as a party to the proceedings pursuant to r 6.24(1) UCPR and Mr Dean submits that the requirement for a tutor be dispensed with: SLRS [12]; SecS [51].

117. Ms Luke drew attention to the decision of White J (at his Honour then was) in to Re Alexis [2011] NSWSC 1545 (Re Alexis) and to the decision of Robb J in Re Anita (No 2).

118. The basis for Ms Luke’s submission was essentially that joinder of Rosie was appropriate so that the Court could be informed of Rosie’s views, permitting a better and more informed determination of the matters before the Court: SLRS [12].

119. Mr Dean approached the matter in a slightly different way submitting that if the Court was inclined to appoint either an independent legal representative or a direct legal representative to act for Rosie, then it would be appropriate to join Rosie as a party to the proceedings pursuant to r 6.24(1) UCPR and to dispense with the requirement for a tutor: SecS [51].

Appointment of a tutor or dispensation with the requirement for a tutor

120. Ms Luke referred me to Re Alexis and Re Anita (No 2). In both cases the Court appointed separate representative for CYP. However, there was no discussion in either case as to whether a tutor should be appointed, nor were the relevant rules dispensed with.

121. Each of Mr Dean and Ms Luke made specific submissions in relation to the requirements regarding the appointment of a tutor. Both noted that the Court had a dispensing power pursuant to s 14 of the Civil Procedure Act 2005 (NSW) (CPA).

122. Anecdotally, there are no reported decisions in which the Court has appointed a tutor for a CYP who is the subject of a secure care accommodation order: SLRS [15].

123. In the event that an order was made for the appointment of a tutor, Ms Luke suggested that a person be appointed from the Guardian ad Litem Panel (established and administered by the DCJ) and that once nominated by the Panel Coordinator, and formally appointed by the Court, such a tutor would need to instruct a solicitor: SLRS [15].

124. Ms Luke referred to the evidence before the Court that Rosie had a number of diagnoses which may bear upon her ability to instruct a solicitor including Attention Deficit Hyperactivity Disorder and Disinhibited Social Engagement Disorder: SLRS [22].

125. Ms Luke also referred to the evidence before the Court of Rosie’s self-harming behaviour and admission to hospital on a number of occasions arising from her distress: SLRS [23].

126. To date it is not known how the above diagnoses might affect Rosie’s capacity to instruct a solicitor. However, Ms Luke submitted that the evidence currently before the Court does not tend to suggest that she would be able to do so: SLRS [24].

Representation

127. In relation to the appointment of an independent legal representative, Mr Dean and Ms Luke drew the Court’s attention to a number of cases dealing with representation. In summary, the tenor of their submissions appeared to be as follows:

1. some guidance regarding representation is gleaned from representation of children in proceedings in the Children’s Court and the (then) Family Court of Australia: Department of Community Services v Y [1999] NSWSC 644 at [2] per Austin J; GR v Secretary, Department of Communities and Justice [2021] NSWCA 267 (GR [2021] NSWCA 267) at [45] per Simpson AJA; Re Sally [2011] NSWSC 1696 (Re Sally (No 3)) at [6], [8]-[14] per Slattery J; Re Anita (No 2) at [32]-[33] per Robb J;

2. representation can be ordered by the Court exercising its parens patriae power apart from whatever jurisdiction it has under statutory provisions: GR v Secretary, Department of Communities & Justice; Minister for Families, Communities & Disability Services [2021] NSWCA 301 at [30] (GR [2021] NSWCA 301) per Simpson AJA;

3. assistance to the Court in being provided with information may be achieved through representation apart from the question of joinder: Re Anita [2014] NSWSC 1352 (Re Anita (No 1)) at [18] per Robb J;

4. the capacity of the CPY to provide instructions to a representative is a relevant consideration: Re Kara (No 6) [2020] NSWSC 1857 (Re Kara (No 6)) at [68]-[70] per Williams J; and

5. appropriate assistance to the Court by a separate representative in testing evidence, ensuring that the CYP’s views are put before the Court and raising legitimate questions regarding what matters in the best interests of CYP will be relevant to whether a separate representatives role may be formalised: Re Kara (No 6) at [58]-[59] per Williams J.

Joinder

Court’s general jurisdiction regarding joinder

128. Courts have different mechanisms for addressing the issue of parties to proceedings.

129. Usually, the substantive law will guide considerations as to appropriate parties to proceedings who should either be joined, notified, or given an opportunity to be heard. Within the Supreme Court, there are various legislative provisions and practice guides which will enable the Court to address the issue of joinder of parties.

130. Generally speaking, the rules of natural justice require that before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of the order: Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [77] per McHugh J.

131. In particular, where a Court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party to the proceedings and ought to be joined: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (the John Alexander’s Clubs Case) at [131] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

132. In that respect, the joinder of a party directly affected by an order is, accordingly, not ordinarily a matter of discretion. Rather, it is a matter of obligation upon the party seeking the order. In this regard, the applicant should ordinarily ensure that affected parties joined to the proceedings are not merely given notice of the proceedings: Ross v Lane Cove Council [2014] NSWCA 50 (Ross) at [54] per Leeming JA (Meagher JA and Tobias AJA agreeing).

128. The moving party has an onus to join persons affected by the orders it invites the Court to make (or at least to take other steps so as to afford natural justice to such persons): Ross at [69].

Purposive approach informs joinder of parties

134. The Court has inherent power and statutory power for the purposes of regulating joinder of parties to civil proceedings.

135. The statutory powers include general powers pursuant to ss 61 and 63 CPA and specific rules of Court including, relevantly, the UCPR and the Supreme Court Rules 1970 (NSW) (SCR).

136. Under the UCPR, there are particular provisions which address the joinder and removal of parties: see Pt 6 Divs 5 and 6, and, in particular, rr 6.20-6.31.

137. Because the CPA and the UCPR deal with a range of different matters that might broadly be housed under the description of “civil litigation”, the general joinder provisions of the CPA and UCPR are not always directly apt to deal with specific issues that arise within different parts of the Court’s jurisdiction.

138. The Court must seek to give effect to an overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings when it exercises any power given to it by the CPA and any rules of Court: s 56(1)-(2) CPA.

139. To further the overriding purpose, Court proceedings are to be managed having regard to specified objects being the just determination and timely disposal of the proceedings, the efficient disposal of the business of the Court and the efficient use of available judicial and administrative resources: s 57 CPA.

140. Further, the CPA and any rules of Court (including the UCPR and SCR) are to be so construed and applied, and the practice and procedure of the Court is to be so regulated, as best to advance the overriding purpose and ensure the attainment of the objects: ss 56(2) and 57(2) CPA.

141. The Court, in deciding whether to make any order for the management of the proceedings, including an order considering the regulation of parties to the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a) CPA.

142. For the purposes of determining what the dictates of justice are in a particular case, the Court must have regard to the provisions in ss 56 and 57 CPA, and may have regard to the matters set out in s 58(2)(b) CPA to the extent which the Court considers them relevant.

143. The provisions of s 58(2)(b) CPA are as follows:

(2)    For the purpose of determining what are the dictates of justice in a particular case, the court—

…

(b)    may have regard to the following matters to the extent to which it considers them relevant—

(i)    the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)    the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii)    the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv)    the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v)    the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi)    the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii)    such other matters as the court considers relevant in the circumstances of the case.

144. The purposive nature of the Court’s overriding purpose and objects in civil proceedings is to be understood having regard to the purposive nature of the Court’s substantive jurisdiction, whether that be inherent, statutory or pursuant to the general law.

145. An example of this is seen in how the purposive nature of the Court’s protective jurisdiction is contrasted with the purposive nature of the Court’s probate jurisdiction and family provision jurisdiction.

146. Lindsay J writing extrajudicially in “Parties, Property and Notice of Proceedings in Succession Law Cases” – College of Law Seminar, 20 February 2019, has helpfully summarised those purposive natures as follows:

26 The protective jurisdiction exists for the purpose of taking care of those who cannot take care of themselves: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259. The Court focuses, almost single-mindedly, upon the welfare and interests of a person incapable of managing his or her own affairs, testing everything against whether what is to be done or not done is or is not in the interests, and for the benefit, of the person in need of protection, taking a broad view of what may benefit that person, but generally subordinating all other interests to his or hers.

27 The probate jurisdiction looks to the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intention of the deceased, and the respective interests of parties beneficially entitled to the estate. The task of the Court is to carry out a deceased person’s testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192.

28 The family provision jurisdiction, as an adjunct to the probate jurisdiction, looks to the due and proper administration of a particular deceased estate, endeavouring, without undue cost or delay, to order that provision be made for eligible applicants (for relief out of a deceased estate or notional estate) in whose favour an order for provision “ought” to be made.

Provisions dealing with persons under a legal incapacity

147. There are specific provisions under the CPA which deal with persons under legal incapacity: Pt 6 Div 4 ss 74-80.

148. This includes provisions dealing with settlement of claims made on behalf of, or against, a person under legal incapacity, which claim might be enforceable by proceedings in the Court but has been compromised or settled before any such proceedings are commenced: s 75 CPA.

149. Although the role of a tutor is conceptually different from that of a trustee, there is provision for the tutor of a person under legal incapacity to apply to the Court to request directions with respect to the tutor’s conduct of proceedings (either before the Supreme Court or any other Court) on behalf of that person: s 80 CPA. Such a provision at least at first blush is reminiscent of the facility of the Court to give judicial advice to a trustee.

150. Various rules of Court and Practice Notes within the Supreme Court prescribe how some proceedings which involve persons who are or may be under a legal incapacity are to be regulated.

151. Thus, without being exhaustive, the rules of Court and Practice Notes address:

1. proceedings involving administration of estates and execution of trusts: Part 54 UCPR;

2. matters arising under the Trustee Act1925 (NSW): Part 55 UCPR;

3. matters arising under the Adoption Act 2000 (NSW): Part 56 UCPR; Practice Note SC EQ 13 – Adoptions (Practice Note SC EQ 13);

4. matters arising under the Surrogacy Act 2010 (NSW): Part 56A UCPR;

5. matters arising under the NSW Trustee and Guardian Act2009 (NSW) (NSWTG Act) or Guardianship Act1987 (NSW) (Guardianship Act): Part 57 UCPR.

152. Matters arising under the NSWTG Act or Guardianship Act are more clearly identifiable as being housed under the Court’s protective jurisdiction.

153. However, self-evidently, Pt 57 at least expressly addresses the Court’s exercise of specific statutory jurisdiction as distinct from the Court's inherent jurisdiction or more particularly the parens patriae jurisdiction.

154. Nonetheless, in respect of that particular statutory jurisdiction the UCPR provides that if an application is made under s 41 of the NSWTG Act, that the person in respect of whom the application is made must be made a defendant: r 57.3(1) UCPR.

155. Section 41 NSWTG Act empowers the Court to declare that a person is incapable of managing his or her affairs and order that the estate of the person be subject to management under the Act if the Court is satisfied that the person is incapable of managing his or her affairs: s 41(1).

156. The Court may make an order on its own motion or on the application of any person having a sufficient interest in that: s 41(2).

157. In relation to an application under s 54 NSWTG Act, the person in respect of whom the application is made must be made a defendant but need not be served: r 57.3(2) UCPR.

158. Section 54 NSWTG Act empowers a Court to declare that a person is a missing person and to order the estate of the person (or any part of it) be subject to management under the Act: s 54(1).

159. The application may be made by anyone of a number of specified persons: s 54(3) NSWTG Act.

160. It is a matter of drafting nicety that r 57.3 requires the missing person to be made a defendant “but need not be served”.

The parens patriae jurisdiction

161. References to the parens patriae jurisdiction have been said to date back to the reign of Edward I (1272–1307): Baker, Ashton, Marin et al, Court of Protection Practice 2020 (20th ed, 2020, LexisNexis (UK)) (Court of Protection Practice 2020) at 18-20. The jurisdiction was given statutory recognition in 1339 and continued in the UK until 1959, at least in relation to incompetent adults when the Mental Health Act 1959 (UK) (MHA) abolished the delegation of the royal prerogative in respect of adults and established a completely statutory jurisdiction: Court of Protection Practice 2020 at 18-19.

162. Historically, the parens patriae jurisdiction (in recognition of the Crown as parent of the nation) applied to both infancy and lunacy jurisdictions and the jurisdiction over charities: Lindsay J, “NCAT’s Protective Jurisdiction in Context” – NCAT Guardianship Division Training Seminar, 14 June 2022 at [41].

163. The extent of the parens patriae jurisdiction was considered by Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23] to [32]. His Honour noted:

23. The “parens patriae jurisdiction” of the Supreme Court, as it is customarily called, has its historical antecedents in the “infancy” or “wardship” jurisdiction of the Lord Chancellor of England. It was conferred on the Supreme Court by Imperial legislation (the New South Wales Act 1823, section 9 and the Australian Courts Act 1828, section 11) and Letters Patent (The Third Charter of Justice, 13 October 1823, clause 18), continued in operation by section 22 of the Supreme Court Act 1970 NSW.

24. With the commencement of that Act on 1 July 1972, the Court acquired, by virtue of section 23, a new source of jurisdiction sometimes characterised as “inherent” jurisdiction and called in aid as a source of “parens patriae” jurisdiction: Re AAA; Report on a Protected Person’s Attainment of the age of majority [2016] NSWSC 805 at [20]-[27]; Fountain v Alexander (1982) 150 CLR 615 at 633.

25. A convenient statement of the High Court of Australia of the nature, purpose and scope of the parens patriae jurisdiction can be found in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259.

26. By reference to observations made by Lord Eldon in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 389 ER 236 at 243, the High Court defined the purpose of the jurisdiction as being “the care of those who are not able to take care of themselves”.

27. The High Court approved the analysis of the jurisdiction by La Forest J of the Canadian Supreme Court in Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4^th) 1 at 14-21, including the observation (at SCR 410; DLR 16) that the “inherent jurisdiction” [exists] to do what is for the benefit of the incompetent” and “[its] limits (or scope) have not, and cannot, be defined”.

28. The jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be exercised for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4^th) 1 at 17.

29. The Court exercises caution in the exercise of the jurisdiction in cases (such as the present one) in which the Children’s Court exercises specialist, statutory jurisdiction, subject to a statutory right of appeal. The Court is concerned not to undermine the integrity of statutory procedures. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608. An exercise of the jurisdiction in this context is said to require “exceptional circumstances”.

30. The Court’s jurisdiction cannot properly be invoked to circumvent a statutory appeal procedure: Re B (No. 1) [2011] NSWSC 1075 at [58]-[60].

31. Upon an exercise of the jurisdiction, the Court aims to give effect to a prudential regime for management of the affairs of a person in need of protection (managing risk prudentially), without strife, in the simplest and least expensive way in the interests of that person.

32. The purposive character of the jurisdiction is an important consideration in its exercise.

164. Everything done or not done on an exercise of protective jurisdiction must be measured against whether it is in the interests, and for the benefit, of the person in need of protection: C v W (No 2) [2016] NSWSC 945 (C v W (No 2)) at [28] per Lindsay J referring to Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F, 241G-242A per Kirby P (Sheller JA and Windeyer AJA agreeing); GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 at 25 [48] per Muir, Gotterson and Morrison JJA.

Joinder of parties in other protective jurisdictions

165. Different jurisdictions throughout the common law world approach the questions of joinder of parties to proceedings within the protective jurisdiction differently.

166. The regulation of parties is within those jurisdictions variously based upon inherent jurisdiction, statutory provisions, rules of Court, Practice Notes and caselaw.

167. It is informed by different approaches within different jurisdictions to addressing the needs of those who cannot properly care for themselves and a proper understanding of the nature of the proceedings and the subject of the proceedings.

168. Different jurisdictions have grappled over time with the confusion arising from the fact that questions of lack of capacity straddle legal, medical and psychological realms, and each of those realms has had at times different approaches to assessing capacity.

The UK approach to joinder of parties in protective cases

169. In the United Kingdom (UK), the Law Commission, in its report on Mental Incapacity (which led to the eventual enactment of the Mental Capacity Act 2005 (UK) (MCA)), contemplated several possible tests of mental capacity.

170. That included tests directed to the content or reasonableness of a person’s decision and expressed concern that a focus on the outcome of the person’s decision held too much potential for assessors to find a lack of capacity on the basis that they did not agree with the person's decision: Court of Protection Practice 2020 at 38.

171. The Commission recommended a functional approach (or what is known in clinical practices as “decision-making capacity”) which addresses capacity for each specific decision, or type of decision, at the time the decision needs to be made.

172. That approach is distinctive from addressing capacity based upon diagnosis with a particular condition or preconceived ideas or assumptions about abilities based on age, appearance or behaviour: Gordon Ashton, Justice Baker and Judge Marc Martin, Mental Capacity: Law and Practice (4th ed, 2018, LexisNexis (UK)) at 19, 98 (Mental Capacity: Law and Practice).

173. The United Kingdom has had a long history of grappling with how to best manage and regulate proceedings involving parties who lack capacity.

174. One of the reforms brought about by the MCA was the creation of the Court of Protection in the United Kingdom, as a new superior court of record in the UK pursuant to s 45 MCA.

175. The approach of the Court of Protection in the UK in addressing the best interests of the relevant person differs from civil litigation in respect of joinder of parties where the purpose of the proceedings is to resolve disputes between parties who select themselves.

176. In the protective regime, treating the person who is the subject of the proceedings as a party has been said to introduce an unnecessarily adversarial approach to the hearing: Mental Capacity: Law and Practice at 410.

177. The Court of Protection exercises a statutory jurisdiction which is distinct from the parens patriae jurisdiction in NSW.

178. However, the practice of the Court of Protection provides a degree of insight as to how the UK has grappled with questions regarding joinder of parties where persons lack capacity.

179. The Court of Protection has detailed rules that govern its operation which rival the UCPR in terms of comprehensive procedural provisions. The printed version of the Court of Protection Rules 2017 (UK) (COPR) runs to some 95 pages of extremely detailed provisions.

180. There is a breathtakingly large amount of procedural rules, Practice Directions and commentary which attends the jurisdiction exercised by the Court of Protection regarding joinder of parties.

181. Of some significance is the fact that the COPR commence with a description of the overriding objective of enabling the Court to deal with a case justly and at a proportionate cost, having regard to the principles and provisions of the MCA: r 1.1(1) COPR.

182. The COPR specifically address the participation of the person (“P”) who is the subject of the application to the Court: r 1.2 COPR.

183. “P” is, relevantly, any person (other than a protected party) who lacks or, so far as consistent with the context, is alleged to lack capacity to make a decision or decisions in relation to any matter that is the subject of an application to the Court: r 2.1 COPR.

184. P is distinguished in this way from a “protected party” who is essentially a party or intended party, other than P or a child, who lacks capacity to conduct proceedings: r 2.1 COPR.

185. The overriding objective in dealing with such proceedings in r 1.1 is stated as follows in r 1.1:

Overriding objective 1.1.—

(1) These Rules have the overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Act.

(2) The court will seek to give effect to the overriding objective when it—

(a) exercises any power under the Rules; or

(b) interprets any rule or practice direction.

(3) Dealing with a case justly and at proportionate cost includes, so far as is practicable—

(a) ensuring that it is dealt with expeditiously and fairly;

(b) ensuring that P’s interests and position are properly considered;

(c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(d) ensuring that the parties are on an equal footing;

(e) saving expense;

(f) allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases; and

(g) enforcing compliance with rules, practice directions and orders.

186. Immediately after stating the overriding purpose, the COPR address the participation of P in the proceedings.

187. The provisions regarding the participation of P in such proceedings is as follows (r 1.2):

Participation of P

1.2.—(1) The court must in each case, on its own initiative or on the application of any person, consider whether it should make one or more of the directions in paragraph (2), having regard to—

(a) the nature and extent of the information before the court;

(b) the issues raised in the case;

(c) whether a matter is contentious; and

(d) whether P has been notified in accordance with the provisions of Part 7 and what, if anything, P has said or done in response to such notification.

(2) The directions are that—

(a) P should be joined as a party;

(b) P’s participation should be secured by the appointment of an accredited legal representative to represent P in the proceedings and to discharge such other functions as the court may direct;

(c) P’s participation should be secured by the appointment of a representative whose function shall be to provide the court with information as to the matters set out in section 4(6) of the Act and to discharge such other functions as the court may direct;

(d) P should have the opportunity to address (directly or indirectly) the judge determining the application and, if so directed, the circumstances in which that should occur;

(e) P’s interests and position can properly be secured without any direction under sub-paragraphs (a) to (d) being made or by the making of an alternative direction meeting the overriding objective.(3) Any appointment or directions made pursuant to paragraph (2)(b) to (e) may be made for such period or periods as the court thinks fit.

(4) Unless P has capacity to conduct the proceedings, an order joining P as a party shall only take effect—

(a) on the appointment of a litigation friend on P’s behalf; or

(b) if the court so directs, on or after the appointment of an accredited legal representative.

(5) If the court has directed that P should be joined as a party but such joinder does not occur because no litigation friend or accredited legal representative is appointed, the court shall record in a judgment or order—

(a) the fact that no such appointment was made; and

(b) the reasons given for that appointment not being made.

(6) A practice direction may make additional or supplementary provision in respect of any of the matters set out in this rule.

(The appointment of litigation friends, accredited legal representatives and representatives under paragraph (2)(c) is dealt with under Part 17.) (“Accredited legal representative” is defined in rule 2.1.) take it in.

188. There are detailed Practice Directions that supplement Pt 1 of the COPR (which covers the overriding objective, the participation of P, the Court’s duty to manage cases and the duty of the parties, legal representatives and unrepresented litigants).

189. In particular there are Practice Directions which address:

1. the participation of P: Practice Direction 1A; and

2. the notification of P in such proceedings: Practice Direction 7A.

190. Further, there is a Practical Guidance Note “Facilitating participation of “P” and vulnerable persons in Court of Protection proceedings” issued by Mr Justice Charles on 3 November 2016 which is provided in order to guide practitioners as to how they might consider enhancing the participation of P in proceedings in the Court of Protection.

191. There is extensive commentary in Court of Protection Practice 2020 including detailed commentary regarding the Court’s practice and procedure in respect of the overriding objective of the COPR, starting proceedings, parties, service and notification of the incapacitated person: see ch 8.

192. There is an entire chapter devoted to representation and participation of P: see ch 10.

193. There are useful insights that can be gleaned from the abovementioned Court of Protection materials.

194. The Practice Direction regarding the participation of P opens by referring to developments in caselaw in both the European Court of Human Rights and domestic Courts in the UK that have highlighted the importance of ensuring that P takes an appropriate part in the proceedings.

195. The Practice Direction highlights the importance of ensuring that the Court is properly informed about P whilst noting the difficulties of securing this in a way which is proportionate to the issues involved and the nature of the decisions which need to be taken and avoiding excessive delay and cost: Practice Direction 1A at [1].

196. The particular rule providing for participation of P contemplates that there are a number of directions that the Court might make in any given case which whilst including a direction that P should be joined as a party, do not necessarily require that: r 1.2(2) COPR.

197. The COPR contemplate that P might in some cases not be joined as a party, but nonetheless provide the P’s participation might be secured adequately in any given case by the appointment of a representative to represent P in the proceedings and to discharge other functions as the Court may direct or alternatively to provide the Court with certain information: r 1.2(2)(b)-(c) COPR.

198. There is a further option that simply enables P an opportunity to address the Judge dealing with the application: r 1.2(2)(d) COPR.

199. The Court’s choice in respect of any of the options is directed by r 1.2(1) COPR (whether on its own initiative or on the application of any person) having regard to:

1. the nature and extent of the information before the Court;

2. the issues raised in the case;

3. whether a matter is contentious; and

4. whether P has been notified in accordance with the provisions of the COPR and what if anything P has said or done in response to such notification.

200. It is said that r 1.2 is directed to making provision to ensuring in every case that the question of what is required to ensure that P’s “voice” is properly before the Court is addressed and to provide flexibility allowing for a range of different methods to achieve that: Practice Direction 1A at [2].

201. The great majority of cases in terms of numbers before the Court of Protection relate to non-contentious matters concerning property and affairs, where there is a need to preserve P’s resources.

202. It is observed that experience has shown that they can be dealt with “on paper” and without joining P as a party or appointing anyone to represent P: Practice Direction 1A at [3].

203. It is noted that other cases involve a range of issues relating to the property and affairs and personal welfare of P which either do or may call for a higher level of participation by or on behalf of P at one or more stages of the case: Practice Direction 1A at [4].

204. Ultimately, in terms of participation of P in the proceedings, the Practice Direction indicates that the Court is both required and enabled to tailor the provision it directs for P’s participation and representation to the circumstances of the individual case: Practice Direction 1A at [6].

The NSW approach to joinder of parties in protective cases

205. There are no rules of Court or Practice Note provisions which apply broadly to the Protective List of the Supreme Court.

206. In relation to approaches to the jurisdiction, and the making and framing of orders, not merely in relation to joinder, but generally in secure accommodation cases, Robb J in Re Anita (No 2) stated at [35]-[36]:

35 There are relatively more differences between the practices adopted by individual judges in this context than would ordinarily be expected to be found. Judges appear to exercise their personal responsibility according to their own perceptions as to the most appropriate course to be followed. Often judges do not publish their reasons for judgment, so it is not entirely easy to conduct an objective review of the practices that are followed. The judges have not worked towards the establishment of generally applied practices, but have left the choice of the appropriate practice for determination by the individual judge to meet the perceived needs of the case.

36 I accept this approach. In seeking to provide answers to the questions that have arisen, I make no attempt to suggest that my own answers should establish procedural rules or practices that are correct, to the exclusion of others.

207. Those observations accord with my experience.

208. The inherent flexibility of approach and framing of orders within the parens patriae jurisdiction perhaps explains why there is no Practice Note in relation to the operation of the jurisdiction.

209. It should not, however, be thought that there are no clear guides as to how various matters which arise within the parens patriae jurisdiction should be exercised.

210. This Court has a long history of judgments within the jurisdiction which provide good guidance to judges, particularly in circumstances where a judge is approached with an urgent application, to assist and inform such judges in addressing the exigencies of any given case.

211. Further, there is extensive publication by judges and other eminent lawyers of guides regarding the protective jurisdiction, including in particular numerous papers by the current Protective List Judge, Lindsay J.

212. As at 2011 there was, in secure accommodation cases, a practice that the CYP not be named as a defendant: Re Alexis at [17] per White J (as His Honour then was).

213. In Re Alexis, White J considered that Alexis should be joined as a party provided there was no complication that would tend to identify her, given that the orders sought directly affected her. His Honour added that this would mean that there should be no question of her right to appeal from the order: at [17]. His Honour joined Alexis as the third defendant: at [19]

214. In relation to joinder, the suggestion of the parties is that joinder be considered under r 6.24 UCPR.

215. That is a provision which enables the Court to join a person as a party if the Court considers that the person ought have been joined as a party or is a person whose joinder as a party is necessary to the determination of all matters in dispute and any proceedings.

216. It has been observed that provisions of that rule, at least insofar as the permissive power to join is based on necessity, relate to matters which are said to be “in dispute” in the proceedings.

217. In relation to proceedings involving secure accommodation orders or indeed any protective proceedings, such proceedings are not adversarial and accordingly it cannot truly be said that matters are “in dispute”: Re Bella [2013] NSWSC 1034 (Re Bella) at [9]-[10] per White J (as his Honour then was).

218. There are other candidates of jurisdictional power to effect joinder of parties amongst UCPR rules that arise for consideration.

219. For example, the Court has a broader power to give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with the UCPR or any other rules of Court) for the just, quick and cheap disposal of the proceedings: r 2.1 UCPR.

220. Where the Court does make an order, for example under r 6.24, it may also make orders for the further conduct of the proceedings: r 6.32.

221. However, the parens patriae jurisdiction itself is a source of procedural power as to how the Court should conduct proceedings in exercise of that jurisdiction (as distinct from the UCPR): Re Anita (No 1) at [16] per Robb J.

222. In deciding whether an applicant’s joinder is necessary regard must be had to the nature of the jurisdiction being exercised: see C v W (No 2) (supra); Re Bella at [10]; Re Anita (No 1) at [17].

223. In Re Bella, at the time that the proceedings were commenced, the Director-General who commenced proceedings joined Bella’s natural parents as defendants although they had not had parental responsibility for her since she was very young: at [6].

224. Bella’s former foster parents made an application that they be joined as parties to the proceedings.

225. The application for joinder was made pursuant to r 6.24 UCPR. The application was opposed by the Director-General and Minister and by Bella’s natural parents. Further, it was not supported, at least at that stage, by the solicitor from the Legal Aid Commission representing Bella’s interests: [8].

226. Noting that the proceedings were not adversarial in nature, White J indicated that there would be no direct issue requiring the Court to adjudicate on allegations of the natural parents against the applicants and vice versa: at [24].

227. His Honour considered that the natural parents were only entitled to be parties to the proceedings to the extent that they could assist the Court in the assessment of what was in Bella’s best interests: at [24].

228. His Honour considered that the applicants should be in a position to provide such assistance and in the circumstances permitted joinder because it was in Bella’s interests that the applicants be joined as parties. White J observed, however, that the purpose of doing so would only be achieved if at least some information in relation to Bella’s progress was provided to other parties: [20], [29].

229. In Re Anita (No 1), at the time the proceedings were commenced, only the Secretary and the Minister were parties to the proceedings. They did not join Anita’s parents and Anita was not a party: at [8].

230. Anita’s mother applied to be joined pursuant to r 6.24(1) UCPR: Re Anita (No 1) at [10].

231. In particular, Robb J observed in Re Anita (No 1), in considering the joinder of Anita’s mother to the proceedings that the principles laid down by the High Court in the John Alexander’s Clubs Case were of little assistance to considerations of joinder in parens patriae jurisdiction proceedings as they concern other proceedings where the orders that the Court is invited to make would affect the rights or liabilities of non-parties: Re Anita (No 1) at [17].

232. In civil, adversarial proceedings or proceedings where the orders will affect the rights or liabilities of non-parties, where the Court makes orders for joinder of a non-party to proceedings ordinarily such a non-party consequentially obtains the benefit of a number of related forensic advantages including, for example, entitlement to be served with evidence that other parties propose to tender: Re Anita (No 1) at [19].

233. The consideration of joinder of parties to proceedings within the parens patriae jurisdiction is not viewed through the prism of considerations that inform joinder of parties in non-protective proceedings.

234. Fundamentally, the Court in exercising the jurisdiction has a breadth of power untrammelled by binary choices regarding whether parties should be joined or not joined.

235. Rather, the Court may permit any persons who might be able to assist the Court in exercising the jurisdiction to do so without formally making them parties.

236. Further, the Court may make consequential orders that regulate the manner in which such persons may participate in the proceedings, including in relation to the information they should be given for that purpose: Re Anita (No 1) at [18].

237. Robb J observed that it is not entirely clear what the purpose of formally joining non-parties (other than the CYP) as parties to proceedings in the parens patriae jurisdiction might be, except perhaps for the purpose of giving them a right of appeal. No orders will be made that will bind them in any legal sense: Re Anita (No 1) at [18]; Re Anita (No 2) at [83].

238. However, in Re Anita (No.2), in relation to the joinder of the CYP, having regard to the observations made by White J in Re Alexis, Robb J considered that in terms of the principle from John Alexander’s Club’s Case that Anita’s rights were directly affected by the orders and that in the ordinary case the CYP should be made a defendant to the proceedings: at [86].

239. His Honour noted that it was not a technicality that the CYP be joined as a party, even though it may appear to make no practical difference, as the applicant’s (Minister and Secretary) can proceed ex parte, and practical circumstances require that the CYP be represented by a separate legal representative: Re Anita (No 2) at [86].

240. Such an approach is consistent with the United Nations Convention on the Rights of the Child (CROC), which was ratified by Australia in December 1990. Article 37(d) of CROC provides as follows:

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Some guides regarding joinder of a CYP

241. The overwhelming number of cases in which secure accommodation orders are sought are those in which the Minister has been given parental responsibility for the CYP pursuant to the provisions of the Care Act.

242. Seemingly, there is no fixed or default starting position regarding joinder of a CYP and other parties to proceedings within the parens patriae jurisdiction.

243. The question of joinder in each case involving secure accommodation orders is fundamentally approached from the purpose of the jurisdiction and, in particular, the best interests of CYP in any given case.

244. Bearing the “best interests” focus in mind, having regard to the submissions received, decisions in Re Bella [9]-[11], Re Anita (No 1) at [14]-[17] and Re Anita (No 2) at [81]-[86] (for which I am greatly indebted), and drawing upon insights from the UK approach in the Court of Protection, the following matters emerge which may, in any given case, provide a guide regarding joinder of a CYP:

1. the parens patriae jurisdiction itself is a source of procedural power as to how the Court should conduct proceedings in exercise of that jurisdiction (as distinct from the UCPR); and

2. the Court, in exercising its power of joinder of parties to parens patriae jurisdiction proceedings has very wide powers; and

3. the question of whether it is in the best interests of the CYP to be joined or not may in any given case be informed by:

1. the nature of the impact of the detention or proposed extension of any detention on CYP;

2. the CYP’s wishes, to the extent that they are able to be expressed and ascertained;

3. the sources of and extent of the relevant information regarding the CPY’s best interests before the Court or able to be placed before the Court;

4. the nature and complexity of issues raised in the case;

5. whether joinder would better give the CYP a dignity and voice in the proceedings and enhanced entitlement or permission and expectation to receive evidence or other materials that is received by the Court or served by other parties;

6. removing doubt about CYP’s rights of appeal; and

7. whether at some later point when the CYP attains their age of majority, he or she might wish to have the right (ordinarily accorded to a party) to access the Court file.

245. Orders and directions made regarding regulation of proceedings including joinder of parties are directed to facilitating a fair hearing.

246. Within civil litigation parties are entitled to a fair hearing and must be given a reasonable opportunity to lead evidence, make submissions, presented case and at trial, to cross-examine witnesses: s 62(4) CPA.

247. Generally speaking, a party has no right to procedure, in the sense that there is no vested entitlement to particular aspects of procedural steps, as distinct from a broader entitlement to a fair hearing: Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104 at [96] per Young CJ in Eq (as his Honour then was).

248. However, subject to affording such a fair hearing, the Court is expressly empowered to make orders and directions which may limit the ability of parties both in terms of time taken in aspects of hearing such as in the examination of witnesses and making of submissions and choices made regarding number of witnesses and documents to be tendered: s 62(3) CPA.

249. Accordingly, the mere joinder of a party to proceedings, particularly parens patriae proceedings, would not per se entitle such party to specific rights of procedure.

250. Nonetheless, there are some procedural steps and incidents of procedure which are generally afforded to parties in a way that are not afforded to persons who may appear or attend before a court, but are not joined as parties.

251. The same is true in respect of evidence and access to material including medical reports. There may be some cases in which full access of materials to a CYP may be restricted on the basis that it is not in the CYP’s best interests and may do him or her harm.

245. A restriction on giving some material to a CYP might be justified notwithstanding joinder of the CYP and the fact that CYP has direct legal representation: Re Sally (No 3) at [20]-[21]. 

246. It should be noted that even if the CYP is not joined appellate courts are not ordinarily stymied by the lack of joinder of a CYP and may entertain an appeal in the interests of the CYP.

Some guides regarding joinder of parties other than CYP

254. A distinction is made between joinder of the CYP on the one hand and others associated with the CYP on the other.

255. The parents or other persons who formerly had the parental care of a CYP are not ordinarily parties to the proceedings: Re Anita (No 2) at [41].

256. In relation to joinder of persons other than the CYP, such as persons (whether relatives, carers or others associated with CYP) slightly different considerations seem to apply.

257. The following considerations emerge:

1. the ultimate touchstone is whether the proposed joinder it is likely to be in the CYP’s best interests for them to be joined as parties;

2. there is often no issue in such proceedings regarding the rights or obligations of persons associated with the CYP and, accordingly, principles which apply in relation to joinder of parties to other proceedings particularly, adversarial proceedings, are not apt for consideration in the joinder of parties to parens patriae proceedings;

3. the power of joinder is informed at least by considerations as to the persons from which the Court will receive assistance concerning the orders that should be made in exercise of the jurisdiction;

4. a particular consideration is whether the party sought to be joined is in a position to provide assistance to the Court, in the form of information, evidence and/or submissions: Re Bella at [20], [24]; Re Anita (No 1) at [14];

5. the choice regarding joinder of parties need not be a final (lasting) decision and the jurisdiction regarding joinder has an inherent flexibility such that subsequently the decision may be revisited by the Court;

6. any such joinder may be made on terms including any limitations that should be placed on the role of such persons, and the information that should be provided to them: Re Anita (No 1) at [14]; and

7. if the applicant for joinder does not provide such assistance, or causes disruption, or for any other reason their continued joinder as parties is not in CYP's interests, then they may be removed as parties: Re Bella at [25]; Re Anita (No 1) at [15].

258. The inherent flexibility of the Court’s procedural power, a taste of which is given by reference to the above-mentioned considerations and matters of practical guidance, will suffice in many, if not most, cases to determine choices about joinder or non-joinder of parties in representation of parties.

Determination

259. Rosie is currently aged 12.

260. On any view of the matter, Rosie’s liberty is directly affected. Accordingly, her personal rights are directly affected in a very material way.

261. Further, the nature of the issues in the proceedings have raised questions regarding her health and welfare. That tends to reinforce appropriateness of joinder of Rosie.

262. Whilst there is provision of information before the Court regarding Rosie which has occurred even without her joinder, that does not count per se against her being joined.

263. I have also borne in mind considerations regarding representation which I refer to more particularly below. With or without joinder, there is facility for Rosie to be represented by an independent legal representative.

264. However, as I understood it, the tenor of Ms Luke’s submission was that Rosie’s representation in the proceedings would be facilitated by her joinder: SLRS [12]. Mr Dean as I have noted above also supported Rosie’s joinder: SecS [51].

265. Ms Luke suggested that joinder would give a CYP such as Rosie a voice through a legal representative, even if she cannot give instructions.

266. Mr Dean indicated that he would not wish to be heard against the thought that joining a child to the proceedings would add to the dignity of the proceedings for that young person.

267. The Court within the parens patriae jurisdiction and acting in the best interests of a CYP may clearly regulate the extent to which any party might receive documentation.

268. Without suggesting that joinder of Rosie to these proceedings (or indeed any CYP to parens patriae proceedings) would necessarily give any vested or strict entitlement to receipt of material, I do accept that joinder would give Rosie an enhanced prima facie permission and expectation to receive evidence or other materials that are received by the Court or served by other parties.

269. I accept that joinder would certainly give Rosie a degree of dignity and a voice in the proceedings.

270. Having regard to the above considerations, I am persuaded that in the circumstances of Rosie’s case, the best interests of Rosie would be facilitated by her joinder.

Requirement for a tutor

271. Where a party to proceedings is under a legal incapacity, the person may not commence or carry-on proceedings, generally speaking, except by a tutor: r 7.14 UCPR.

272. Precisely what is meant by a person not being permitted to “carry on proceedings” within the meaning of r 7.14(1) has been queried: see GR [2021] NSWCA 301 at [18] per Simpson AJA.

273. The term is not necessarily apt in relation to protective proceedings.

274. However, in the broader context of the UCPR and, in particular, the provisions of rr 7.1 and 7.2, the expression “carrying on” arguably covers the engagement of a CYP in legal proceedings.

275. A consequence of the making of an order joining Rosie to the proceedings as a defendant is that, except by leave of the Court, she may not take any step in the proceedings including any appearance in Court, unless she has entered an appearance: r 6.1 UCPR.

276. The UCPR confers legal authority on a tutor to bind the person under legal incapacity.

277. It confers that authority even if the tutor is someone who would not otherwise have authority to bind the person under legal incapacity, by being the manager of a protected person’s estate, or the donee of an enduring power of attorney: r 7.15 UCPR; Azar v Kathirgamalingan [2012] NSWCA 429; (2012) 62 MVR 462 (Azar) at [185] per Campbell JA (McColl and Basten JJA agreeing)

278. However, the authority that r 7.15 confers on the tutor arises only concerning a limited class of acts, namely acts that the UCPR“authorise or require a party to do in relation to the conduct of proceedings”: Azar at [185] per Campbell JA (McColl and Basten JJA agreeing).

279. A tutor is ordinarily liable for the costs of solicitors retained for the person under legal capacity and potentially liable for the costs of the other party: see Azar at [202] per Campbell JA (McColl and Basten JJA agreeing).

280. However, the Court has power under its parens patriae jurisdiction to appoint a tutor on terms that protect the tutor from being personally liable for costs: see Smith v NRMA Insurance Ltd [2016] NSWCA 250; (2016) 77 MVR 480 at [36] per Gleeson JA.

281. The Court has a power to dispense with the requirement for the appointment of a tutor: s 14 CPA.

282. The power may be exercised if the Court is satisfied that it is “appropriate” to do so in the circumstances of the case.

283. The ordinary English meaning of “appropriate” connotes something that is “suitable or fitting for a particular purpose”: Macquarie Dictionary, online ed.

284. It is clear that the Court, in appropriate circumstances, will permit dispensation with the requirement of a tutor and indeed GR [2021] NSWCA 301 is a recent example in which Simpson AJA did precisely that pursuant to the provisions of s 14 CPA at [19], [27] in circumstances where there was no alternative proposal for a tutor.

285. The role of a tutor in legal proceedings is distinct from the role of a legal representative whether it be a direct legal representative or independent legal representative.

286. In Re Sally (No 3), Slattery J at [9] stated as follows:

It should be observed that neither the Direct Legal Representative nor the Independent Legal Representative has direct parallels with the role of a tutor. There are important differences. A tutor is personally liable for costs ordered against an incapable person but a separate representative is not liable for costs in proceedings under the Act: Care Act, s 99. A guardian ad litem in proceedings is often someone with a family relationship with the person for whom the appointment of a tutor is made, although there are examples of independent persons being appointed: see for example Deputy Commissioner of Taxation v P [1987] 11 NSWLR 200. But where the Court is exercising parens patriae jurisdiction such a family member will more likely than not be in a position of conflict of interest with the child and so would not be available for such an appointment. The practical difficulties of finding and paying an independent professional person to act as a tutor for a child in proceedings makes it clear that the statutory procedure of the appointment of an Independent Legal Representative or a Direct Legal Representative is likely to provide a quicker and far less troublesome procedure.

287. In circumstances where a person under an incapacity either lacks the ability to find an appropriate tutor or the means to meet a tutor’s expense, the Court may dispense with the requirement for a tutor: see e.g. Ritchie’s Uniform Civil Procedure NSW (LexisNexis Butterworths) (Ritchie’s) at [7.18.3].

288. Depending on the nature of the matter, the Court may adopt different means of addressing the procedural requirements.

289. This includes, in various cases, appointment of a manager of the incapacitated person’s interest in the proceedings, instructing the Registrar of the Court to appoint an amicus curiae (e.g. Mao v AMP Superannuation Ltd [2018] NSWCA 72 at [21]) or otherwise inviting the Law Society, Bar Association or Pro Bono Panel to provide assistance: Ritchie’s at [7.18.3] citing Iskandar v Mahbur [2011] NSWSC 1056 at [16] per Slattery J.

290. One consideration is whether, in circumstances where a CYP’s interests are represented by the appointment of an independent legal representative and the CYP’s views are conveyed to the Court by such representative the appointment of a tutor would achieve anything for the CYP that is not already being achieved by those means or would otherwise assist the Court in the exercise of its parens patriae jurisdiction in the case: Re Kara (No 6) at [79] per Williams J.

291. The appointment of a tutor may add a layer of communication in the process of the CYP’s independent legal representative taking instructions that would make her less able to respond quickly to evolving circumstances in order to assist the Court by conveying the CYP’s views and making submissions about what is in the CYP’s best interests and what is necessary for her protection and welfare: Re Kara (No 6) at [79] citing P v NSW Trustee and Guardian [2015] NSWSC 579 at [160]-[165] per Lindsay J.

292. In Re Kara (No 6), Williams J dispensed with the need for the appointment of a tutor.

293. In Re Kara (No 6), Kara’s mother (Ms P) had informed the court that Kara would prefer to be represented by the Aboriginal Legal Service (ALS). Legal Aid had made inquiries with ALS and had been informed that they were unable to accept instructions to act as a separate representative for Kara due to a conflict of interest: [64].

294. Kara’s mother submitted that the independent legal representative (Ms Kelso) had not always informed the Court of Kara’s views and had not spent enough time with Kara to understand her views. That submission was rejected: [65].

295. Her Honour accepted that Ms Kelso had ensure the Kara’s views had been before the Court including by tendering notes written by Kara expressing her views and on one occasion, appearing by audio visual link from a hospital with Kara so that Kara could speak directly to the Court: [59].

Determination

296. I accept Mr Dean’s submission that there should be dispensation with the requirement for appointment of a tutor.

297. Generally speaking, cases involving CYPs, particularly in relation to secure accommodation orders, have stood apart from the ordinary run of litigation and, in a context in which a separate legal representative is engaged through the facility of Legal Aid to act for the CYP, the Court can often confidently dispense with the requirement for a tutor.

298. The considerations which Williams J found compelling in Re Kara (No 6) seem to me to apply with equal force in this case.

299. In particular, I have had regard to the considerations that I refer to below regarding representation of Rosie, which, on the facts of this case, at least to this point has resulted in the court receiving clear and helpful information and insightful consideration of matters impacting Rosie from the separate representative.

300. In the circumstances, I dispense with the requirement for the appointment of a tutor for Rosie.

Representation

Representation under the Care Act

301. There are, as might be expected, detailed provisions under the Care Act addressing representation of CYPs in proceedings under that Act and cognate legislation.

302. In New South Wales, in proceedings before the Children’s Court, Pt 1 of Ch 6 of the Care Act addresses:

1. who has a right of appearance: s 98;

2. the appointment of legal representative to act for the CYP: s 99;

3. the circumstances in which any such legal representative is to act as a direct legal representative or an independent legal representative: s 99A; and

4. the differences in relation to the roles of a direct legal representative and an independent legal representative: s 99D.

303. Under the provisions of the Care Act a legal representative for a CYP is to act as a direct legal representative if the CYP is capable of giving instructions and a guardian ad litem has not been appointed for the CYP: s 99A(1)

304. On the other hand, the legal representative is to act as an independent legal representative if the CYP is not capable of giving proper instructions or a guardian ad litem has been appointed for the CYP: s 99A(2).

305. Provisions for appointment of a guardian ad litem for a CYP are addressed in s 100.

306. There is a rebuttable presumption that a child who is less than 12 years of age is not capable of giving proper instructions to his or her legal representative although the Children’s Court may, on the application of a legal representative for such child, make a declaration that the child is capable of giving proper instructions: s 99B.

307. On the other hand, there is a rebuttable presumption that a child who is 12 years of age or older is capable of giving proper instructions to his or her legal representative. This presumption is not rebutted merely by the CYP having a disability: s 99C(1).

308. Likewise the Children’s Court may, on the application of a legal representative for such child, make a declaration that the CYP is not capable of giving proper instructions: s 99C(2).

309. A direct legal representative apart from ensuring that the views of the CYP are placed before the Court and ensuring that all relevant evidence is adduced and where necessary tested, acts upon the instructions of the CYP.

310. That is, the role of a direct legal representative is less prescriptive than the described role of an independent legal representative.

311. The Children’s Court of New South Wales has issued a Practice Note which particularly addresses representation for CYPs in care proceedings: see Practice Note 5 – Case Management in Care Proceedings at paragraphs 7-10.

312. Similar to Robb J in Re Anita, I have found that on each occasion the matter has been listed for mention the information that has been placed before the Court in this case by the various legal representatives has been particularly comprehensive, considered and well prepared.

313. It is not always the case that important decisions affecting young children have no detailed procedural framework. For example, in relation to adoptions, there is a very particular procedural framework and guidance regarding how such proceedings are conducted: Pt 56 UCPR and Practice Note SC EQ 13.

314. Some doubts have been expressed about the statutory basis for appointment by the Supreme Court or the Court of Appeal of an independent legal representative: GR [2021] NSWCA 267 per Simpson AJA at [44]; GR [2021] NSWCA 301 at [30] per Simpson AJA.

315. However, the position at least in relation to appeals from the Presidential Children’s Court is that the Supreme Court has all the functions and discretions that the Children’s Court has under Chapters 5 and 6 of the Care Act: GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157 at [8] per Gleeson JA (White JA and Emmett AJA agreeing).

Representation under the Family Law Act

316. The Family Law Act 1975 (Cth) (FLA) similarly contains provisions dealing with representation for children: see Pt VII, Div 10 ss 68L, 68 LA and 68M.

317. These were discussed by Slattery J in Re Sally (No 3) at [10], [13]-[14].

Law Society and Legal Aid guides

318. The Law Society of New South Wales similarly has published guidelines regarding representation for CYPs addressing the role of practitioners in that regard: see The Law Society of New South Wales, “Representation Principles for Children’s Lawyers” (4th ed, 2014).

319. Legal Aid also publishes various policies addressing the availability of legal assistance: see Legal Aid Commission of NSW, “Care and Protection: Working with Children – A Guide to Best Practice for Children’s Legal Practitioners” (2020).

Representation in Victoria

320. I was referred to the decision of Garde J (as his Honour then was) in A & B v Children's Court of Victoria [2012] VSC 589 (A & B). In that case, his Honour addressed, at length, the legislative history of legal representation for children.

321. Garde J commented upon what is described as a “direct representation” model in which advocacy for children is undertaken on the instructions of the client. In that model the lawyer acts on the instructions of the child.

322. That is contrasted with what is described as a “best interests” model in which the representative assists the Court in coming to a decision that is in the best interests of the child. The lawyer does not take instructions from the child, and, in appropriate cases, may advocate for an outcome that is not necessarily in accordance with the child’s wishes: A & B at [66].

323. Similar sentiments were expressed by Osborn JA in Re Beth (2013) 42 VR 124; [2013] VSC 189. There, his Honour reviewed a series of decisions of this Court describing as a practice that the children the subject of the proceedings be represented by analogy to the way that they would have been represented in child protection proceedings before the Children’s Court: at [187].

324. His Honour cited Re Thomas (No 1), Re Helen [2010] NSWSC 1560, Re Vernon [2011] NSWSC 1222, Re Alexis and Re Jessica [2001] NSWSC 1207 noting that the nature of separate representation for the child afforded in parens patriae proceedings should generally align with the appropriate model applying in child protection proceedings in the Children's Court: [188]-[193].

Representation in the parens patriae jurisdiction

325. The detailed provisions of statutory models for representation of children, including those under the Care Act and the FLA, provide useful templates for guidance to the Court in respect of decisions regarding representation but are not binding on the Court in the exercise of the parens patriae jurisdiction: Re Sally (No 3) at [10].

326. The position regarding appointment of representatives for CYPs has varied over time.

327. In 2006, it was seemingly common practice that, when proceedings were commenced in this Court involving review of Children’s Court proceedings where a child has, or children have, been separately represented under s 99 Care Act, the representatives were named as parties: see Re Jayden [2006] NSWSC 1428 (Re Jayden) at [6] per Simpson J (as her Honour then was) (examples where this had occurred include Grace and Rita[2002] NSWSC 1; George v Children’s Court of New South Wales (2003) 59 NSWLR 389; [2003] NSWCA 389 at [5]).

325. The practice was the subject of adverse comment by Simpson J (as her Honour then was): Re Jayden at [6]-[10].

326. The basis for the appointment of a legal representative and the nature of the role is comprehensively dealt with by Robb J in Re Anita (No 2) at [37]-[78].

327. It suffices for present purposes to make the following observations.

328. There is a tension in the fact that in such cases the Minister on the one hand has sole parental responsibility and on other hand is the party seeking orders which will involve the CYP’s detention and loss of liberty: Re Anita (No 2) at [37].

329. As the CYP is affected by the order at least part of the broader aspect of ensuring that orders are made in the best interests of the safety, welfare and well-being of the CYP and part of affording natural justice is ensuring that there is some person who is empowered to act in the interests of the CYP and be an effective contradictor to enable the Court to form a considered view as to the CYP’s best interests.

330. Parents or other persons who formerly had the parental care or responsibility for the CYP are not generally parties to proceedings such that they can perform that role and, in any event, as was observed by Robb J, there will be cases (perhaps many) in which such persons would not be appropriate contradictors and upholders of the rights of the CYP: Re Anita (No 2) at [41].

331. If possible, a child’s representative should not be a person who may have a conflict between representing the child as a party and representing the child as a legal practitioner: Re Jayden [2007] NSWCA 35 at [100]-[103] per Ipp JA (Beazley and Hodgson JJA agreeing) agreeing with comments of Simpson J in Re Jayden at [9].

332. As distinct from parents or others who have previously had parental responsibility for the CYP, separate representatives are likely persons who can provide an independent input for the Court’s consideration: Re Anita (No 2) at [56].

333. There may be occasions in which, for example, there are restrictions on the young child’s access to material including medical reports, full access to which, may not be helpful to the CYP: Re Sally (No 3) at [21].

334. It is not uncommon in litigation for parties not to be given access to certain material which for some reason is particularly sensitive to other parties in proceedings. A common example of this occurs in commercial litigation as observed by Slattery J in Re Sally (No 3): at [21]-[22].

335. In Re Sally (No 3), Slattery J concluded that, despite a submission otherwise, Sally should be represented by a direct legal representative rather than an independent legal representative. His Honour concluded that even in that context there might be denial of some material to Sally: at [21]-[24].

336. The appointment of a representative can be made nunc pro tunc: Re Kara (No 6) at [62] per Williams J.

What capacity is required to instruct representation in legal proceedings?

340. Relevant capacity to conduct legal proceedings ordinarily involves the ability to understand, with the assistance of proper explanation from legal advisers and experts in other disciplines as the case may require, matters and/or issues relevant to the proceedings.

341. It involves the ability to retain relevant information and make informed decisions about such issues: Masterman-Lister v Brutton & Co (2003) 1 WLR 1511 at [18]-[27] per Kennedy LJ (Potter LJ agreeing), [75] per Chadwick LJ (Potter LJ agreeing).

342. Clearly, within the realm of litigation (and different types of litigation) the capacity assessment is quintessentially task-specific, not merely in relation to the particular legal proceedings, rather than a general capacity to manage affairs but even in respect of different tasks within single legal proceeding: see Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [175]-[176] per Campbell JA (Basten JA and Handley AJA agreeing) and, recently, Basten AJA (White and Mitchelmore JJA agreeing) in Binetter v Binetter [2022] NSWCA 169 at [12]-[20].

343. In Re Sally (No 3), Slattery J at [19] commented that:

If the application of a standard beyond Care Act, s 99A by analogy is required, in my view, Sally is, on the evidence, "Gillick competent" in the sense that she is a child who has attained the capacity to make an informed decisions and is capable of giving instructions: Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. After the decision of the High Court in Department of Health & Community Services v JWB & SMB ("Marion's case") (1992) 175 CLR 218 a child with sufficient intelligence and understanding to instruct a solicitor in Court proceedings concerning the child, may be allowed to do so.

344. Clearly in the case of representation in respect of orders in secure accommodation proceedings there is particular focus on whether the CYP has insight and understanding of their circumstances and the risks to themselves and others that have given rise to the application to the Court. In this regard, I agree with the comments of Williams J in Re Kara (No 6) at [69] citing GR v Department of Communities & Justice [2020] NSWSC 1622 at [81]-[84] per Sackar J

345. As her Honour noted, picking up on the observations of Robb J in Re Anita, at least in the first instance it is difficult to conceive of cases where the CYP has, at the time of the initial application to the Court, capacity to provide proper and informed instructions to a legal representative: at [70]

346. This is so because it is the very lack of insight and troubled or unsettled thinking made manifest through sometimes erratic and aggressive behaviours (placing the CYP and others at risk) that has led to the application: Re Anita (No 2) at [69]; Re Kara(No 6) at [70].

347. With a child of very tender years there is generally no issue but that the representation will, in the first instance, take the form of the appointment of an independent legal representative.

348. With a child of more maturity, as the child progresses in age, questions will arise as to whether the representation ought to take the form of a direct representative or an independent representative.

349. Further, in the event that an independent representative is appointed, questions will arise as to whether at some point independent legal representation should change to direct legal representation: e.g. Re Sally (No.3). As has been observed, no general answer can be given to this question: Re Anita (No.2) at [70].

350. Further, the circumstances of a CYP who at one point has direct legal representation might change, such that the question of whether there is independent legal representation might need to be revisited.

351. Ultimately, within the parens patriae jurisdiction these are issues which the Court may at any given point of time revisit and approach having regard to the best interests of the CYP at that point of time.

Determination

352. The nature of the jurisdiction is such that as time proceeds the Court can review whether the representation in character ought change to that of a direct legal representative.

353. Mr Dean did not submit that the nature of the representation for Rosie should be one or the other: SecS [50]-[51].

354. Ms Luke, on the other hand, did submit that her appointment as a separate representative ought operate as an appointment as an independent legal representative nunc pro tunc: SLRS [26].

355. I am satisfied that such an order should be made.

356. At present, there is a notice of appearance filed in the name of Monique Hitter as “separate representative” for Rosie.

357. Ordinarily, it is not appropriate for the legal representative for a party to file a notice of appearance in the legal representative’s own name: Re Jayden at [6]-[9] per Simpson J (as her Honour then was)

358. I make no criticism at all of Ms Hitter for having done so. It was done within days of the initial approach to the Court, and in the context of the exigencies of the urgent application.

359. Nonetheless, it should be regularised. I will grant leave to Ms Hitter, Cherie Pittman or the current CEO or Deputy CEO of Legal Aid to withdraw the notice of appearance to Ms Hitter and file a notice of appearance in Rosie’s name. Such an order is possible in circumstances where there is a contemporaneous order dispensing with the requirement for a tutor.

Non-publication

360. Lastly, it is necessary to address a question regarding the orders made pursuant to the Court Suppression and Non-publication Orders Act2010 (NSW) (CSNPO Act).

361. I endorse what Robb J has set out regarding the application of the principle of open justice in Re Anita (No 2) at [87]-[108].

362. The provisions of the CSNPO Act expressly do not limit or otherwise affect the Court’s inherent jurisdiction: s 4.

363. A non-publication order is an order that prohibits or restricts the publication of information (but does not otherwise prohibit or restrict the disclosure of information): s 3 CSNPO Act.

364. A suppression order on the other hand is an order that prohibits or restricts the disclosure of information (by publication or otherwise): s 3 CSNPO Act.

365. In that respect, a suppression order will often be broader than a non-publication order.

366. In either case, in determining whether to make such an order the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 CSNPO Act.

367. The power of the Court to make orders is addressed in s 7 CSNPO Act and the grounds on which any such order may be made is addressed in s 8 CSNPO Act.

368. In proceedings involving a secure accommodation order, at the very least there is sufficient grounding to make a suppression order or non-publication order in circumstances where the order is necessary to protect the safety of a CYP: s 8(1)(c).

369. An order may be made on the application of a party to the proceedings or any other person considered by the Court to have a sufficient interest in the making of the order: s 9 CSNPO Act.

370. There are specific provisions indicating who can or must be heard on such an application: s 9(2) CSNPO Act.

371. Provisions of the CSNPO Act address other matters including:

1. the time for making such an order: s 9(3);

2. the specification of grounds on which the order is made: s 8(2); and

3. the making of orders on terms and the wording of any such orders: s 9(4)-(5).

372. An order can be made to apply outside New South Wales (i.e. to anywhere in the Commonwealth) where the Court is satisfied that the order is necessary for achieving the purpose for which the order is made: s 11(2), (3) CSNPO Act.

373. The extent of the operation of the order ought to be specified in the wording of the order: s 11(1) CSNPO Act.

374. Further, the wording of the order must indicate a period for which the order is operative which is no longer than is reasonably necessary to achieve the purpose for which it was made: see s 12 CSNPO Act; DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [42]-[50] per Leeming JA, Bell P (as his Honour then was) at [1] and Meagher JA at [2] agreeing.

375. In this matter, on 9 September 2022, the order that was initially made in the proceedings was amended to address that requirement.

376. On one view, it might be difficult to conceive why an order should operate in the case of a child beyond the child’s 18th birthday.

377. However, as with the discussion above noting the extent to which the Court in its parens patriae jurisdiction is informed by the provisions of the Care Act or other legislative provisions, the Court may well consider it appropriate to have regard to statutory provisions insofar as they bear upon non-publication orders.

378. In relation to proceedings before the Children’s Court or involvement in non-court proceedings (any aspect of care proceedings that is not conducted before the Children’s Court including but not limited to counselling or alternate dispute resolution) there is a statutory prohibition against the publication or broadcasting of the name of the CYP concerned until the CYP attains the age of 25 years or dies, whichever first occurs: s 105(1A) Care Act.

379. In proceedings involving exercise of parens patriae jurisdiction for the making of secure accommodation orders, the Court may well consider it appropriate to have regard to such timing in relation to the making of a suppression order or non-publication order.

380. That can be addressed in Rosie’s case on another occasion.

Orders

381. The orders of the Court are:

1. Order that Rosie be joined as a defendant in the proceedings, to be nominated as the first defendant.

2. Order that, notwithstanding order 1, Rosie continue to be referred to and known as Rosie.

3. Order, pursuant to s 14 CPA that the requirement for a tutor for Rosie be dispensed with.

4. Direct, subject to further order, that Ms Luke’s appointment as a separate representative operate as an appointment as an independent legal representative nunc pro tunc.

5. Grant leave, pursuant to r 12.5 UCPR, to Ms Hitter, Cherie Pittman or the current CEO or Deputy CEO of Legal Aid to withdraw the notice of appearance filed on 27 July 2022 in her name as separate representative for Rosie.

6. Grant leave to Cherie Pittman or the current CEO or Deputy CEO of Legal Aid to file a notice of appearance in these proceedings for Rosie.

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Decision last updated: 21 December 2022