Re: Sadie

[2015] NSWSC 140

Supreme Court

New South Wales

Medium Neutral Citation:	Re: Sadie [2015] NSWSC 140
Hearing dates:	18 February 2015
Decision date:	18 February 2015
Jurisdiction:	Equity Division
Before:	McDougall J
Decision:	Make secure accommodation orders.
Catchwords:	CHILDREN - parens patriae jurisdiction - secure accommodation orders - balancing exercise between competing considerations - where orders would amount to serious limitation of personal liberty - where child at high risk of harm if released into the community - no evidence of appropriate alternatives - where proposed program offers a real prospect of stabilisation and recovery
Cases Cited:	Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 Director General, Department of Community Services & Anor; Re Thomas (2009) 41 Fam LR 220
Category:	Procedural and other rulings
Parties:	Secretary, Department of Family and Community Services (First Plaintiff) Minister for Family and Community Services (Second Plaintiff)
Representation:	Counsel: M England (Plaintiff) Solicitors: I V Knight, Crown Solicitor (Plaintiff)
File Number(s):	2015/51259

Judgment   (ex parte – revised 18 february 2015)

1. HIS HONOUR: This is an application ex parte by the Secretary of the Department of Family and Community Services and the Minister for Family and Community Services. They seek secure accommodation orders in respect of a child who will be known as “Sadie”. Sadie was placed in the parental responsibility of the Minister pursuant to final care orders made in December 2014.

2. In brief, the orders are sought because it is said that Sadie, a thirteen year old child, is at imminent risk of serious harm and that there are no other less intrusive orders that would meet the exigencies of her case.

3. Before I deal with the facts of the case, I will touch on the source of the Court’s power to make the orders sought. The application is made under the Court’s parens patriae jurisdiction. That jurisdiction is broad and its limits have never been defined. In very general terms, it is an inherent jurisdiction to do what is necessary for the benefit of incompetent persons. That point was made in the decision of the High Court in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 258.

4. The particular power to make the orders sought (which would confine a young person for his or her own benefit and protection, in secure accommodation) was discussed by Brereton J in Director-General, Department of Community Services & Anor; Re Thomas (2009) 41 Fam LR 220. I will not look at the detail of his Honour’s consideration of the jurisdiction invoked nor at his reasons for concluding that it extended to make the orders sought. Those who wish may read what his Honour said at [22] to [38] and his Honour’s conclusions at [39] to [43].

5. I respectfully agree with Brereton J that the parens patriae jurisdiction does extend to the orders that were sought in Re Thomas and to the orders that are sought in this case.

6. As Brereton J said, in effect, at [38], the Court is required to consider two very distinct considerations at least. One is that the orders sought, if granted, would involve a very serious limitation on the personal liberty and autonomy of the child in respect of whom they are made. The other is the risk that unless the orders are made, it is extremely likely that the child will come to harm (I shall return to this in a moment).

7. The balancing exercise between those considerations is not one which can be easily performed or explained, other than by careful consideration of the detail, and the forming of an evaluative judgment as to the propriety of exercising of the power in the circumstances that are proved.

8. As I have said, Sadie is a thirteen-year-old child. She has been reported as being at risk on many occasions throughout her young life. In more recent years, she has been involved, on her own admission, in dangerous risk-taking and illegal behaviour. She has been the subject of numerous attempts to seek to regulate her behaviour and control her condition. Those attempts have failed. Were she to be placed in some form of care or accommodation and provided with assistance, her history suggests that she will abscond and return to her previous way of life.

9. Given that this application is made ex parte, it is undesirable that I should recount in detail, let alone express concluded views of, the history of the child and the risks to which, if not confined, she is likely to expose herself and be exposed. It is sufficient to say that her behaviours over recent years have involved the following features:

1.  violence and aggression towards others;

2. self-harm and suicidal ideation;

3. causing property damage, including a serious occasion when she lit a    fire and disconnected the smoke alarm;

4. sexualised behaviour, including prostitution for the purpose of getting    money to obtain food, drugs, cigarettes, alcohol and accommodation.

5. alcohol and drug abuse; Sadie has admitted that she uses methamphetamine and marijuana daily; she smokes; and she consumes alcohol;

6. delusional beliefs; specifically, Sadie seems to have nursed the belief that she gave birth to a baby boy who was removed from her by a  Community Services worker and killed by being run over with a car.

10. Sadie has been involved with the criminal justice system on many occasions over the past three years. She has been in juvenile detention on four separate occasions. At present she is on good behaviour bonds for serious offences, including theft (shoplifting), assault and causing or threatening physical violence.

11. The evidence as to Sadie’s medical condition suggests that she is at the autistic end of the spectrum of symptoms that includes autism. It suggests, further, that she is at serious risk of developing psychosis if she is not appropriately treated and medicated.

12. At present, Sadie is resident in an adolescent psychiatric facility. The treatment that she receives has stabilised her mental health. She is due for release. History suggests that, once released, Sadie is very likely to revert to her anterior, undesirable, anti-social and dangerous (to herself and others) behaviour.

13. The evidence satisfies me that if Sadie is released other than into a secure environment, it is unlikely that she will continue to take her medication. It satisfies me further, that she would be at serious risk of self-harm, harm by extraneous causes, and sexual exploitation. It is at least foreseeable (and I would have thought inevitable) that, absent secure restraint and treatment, Sadie is likely, once more, to end up before the courts.

14. The Department operates a support and rehabilitation program in conjunction with other Departments of State. The program is designed to provide secure accommodation for troubled adolescents. When I say “secure”, I mean that they are confined to the premises to which they are taken, and that precautions are taken to prevent them from absconding.

15. The program offers children accommodation on a “single room” basis in an environment where they will receive continual monitoring and are provided with medical, educational and social support. The evidence is that there is no other therapeutic residential social program in this State that could offer Sadie twelve to eighteen months of accommodation which, in the view of others who have had dealings with her, is what she now needs.

16. As I have said, it is a very serious matter to deprive anyone of their liberty. That is as much true of a child as it is of an adult. Nonetheless, the simple fact is that the child in this case is, in law, not competent to make decisions for herself. To the extent that it matters, history shows that in fact she is not emotionally or intellectually competent to make those decisions for herself. Thus, the Court must make them for her.

17. The orders of the Court are needed because, as Brereton J stated in Re Thomas, it is beyond the ordinary scope of parental responsibility (which resides in the Minister) to confine a child for a length of time.

18. I am satisfied on the basis of the evidence that I have very briefly summarised that if Sadie is released from her current psychiatric treatment into the community, the risks to which I have referred are very likely to eventuate. Equally, I am satisfied that the program to which I have referred gives a very real prospect that she may, in due course, return into the community as a functioning near adult capable of making informed and appropriate decisions for herself.

19. I am satisfied, on the evidence before me, that it is only if Sadie is given the benefit of the program within secure accommodation from which she cannot abscond that those positive outcomes may materialise.    

20. Balancing the various considerations as best I can, and acknowledging that because this application has been heard ex parte, I have not had any opportunity of hearing from legal representatives on behalf of Sadie, I have come to the conclusion that the orders sought should be made. I take into account, among other things, that the matter will come back before me in a week or so, by which time legal representation should have been arranged for Sadie, and by which time further evidence may be available bearing on the question of whether the orders sought should be continued.

21. The orders that are sought in respect of detention, transport and restraint are sought “until further order”. I do not think that it is appropriate to make them in that form. In my view, the appropriate order is to make them up until 5 pm on the day when the matter comes back before the Court. I say that to make it perfectly clear that when the matter does come back before the court, it will be the Secretary and the Minister who bear the onus of persuading the Court that further orders should be made.

22. For those reasons, I make orders in accordance with paras 1 to 12 of the short minutes of order, amended and initialled by me and dated today’s date, together with an order for entry forthwith.

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Decision last updated: 04 March 2015