Re Sally

[2009] NSWSC 1141

CITATION:	Re Sally [2009] NSWSC 1141
HEARING DATE(S):	23 June 2009; 30 June 2009; 30 September 2009
JUDGMENT DATE :	20 October 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Slattery J at 1
DECISION:	Grant orders sought, with matter to remain under judicial review, and parties being granted liberty to apply.
CATCHWORDS:	FAMILY AND CHILD WELFARE - Parens patriae- Scope of power - where 15 year old child has extensive history or serious self-harming, violent and anti-social behaviour - where experts strongly support preventative confinement of child in secure accomodation to facilitate treatment plan - where Director- General seeks order authorising indefinite involuntary detention of child in secure accomodation unit - whether such order may be made in parens patriae jurisdictiuon - relevance of child's human rights under Convention on Rights of the Child.
LEGISLATION CITED:	Children Act 1989 (UK)Children and Young Persons (Care and Protection) Act 1998 (NSW)
CASES CITED:	Director General, Department of Community Services v Jules [2008] NSWSC 1193Director General, Department of Community Services v Thomas [2009] NSWSC 217DoCS v Y [1999] NSWSC 644In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2WLR 1141Marion’s Case (1992) 175 CLR 218Murray v Director Family Services, ACT (1993) FLC 92-416Re Frances and Benny [2005] NSWSC 1207Re W [1992] 3 WLR 758 Re X (A Minor) [1975] 2 WLR 335Re X [1975] 1 All ER 697Secretary of the Department of health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218Vaughan v Vaughan (NSWSC, Powell J, 27 February 1979, unreported)Wellesley v Duke of Beaufort (1827) 38 ER 236
PARTIES:	Director-General, Department of Family and Community Services and Minister for Family and Community Services (Applicant) Child “Sally” (Respondent)
FILE NUMBER(S):	SC 3346/09

1 HIS HONOUR: Sally has a lengthy history of self harm. She has often been violent towards her carers and other people. She has caused serious damage to property at places where she has been a resident in institutional care or an inpatient in hospital. “Sally” is not her real name.

2 The plaintiff, the Director General of the Department of Community Services made an urgent ex parte application in relation to Sally at 11.45am on the morning of 23 June 2009 in the Equity Division Duty list. At the time of this application Sally was a resident at an adolescent mental health unit. The urgency of the matter arose because an unexpected decision made the previous day, 22 June 2009 that Sally was to be discharged from the adolescent mental health unit early in the afternoon of 23 June. At that ex parte hearing I heard evidence about Sally which is analysed in more detail below. At about 1.40pm on 23 June I made the following orders:

“The Court Orders that:

1) the Notice of Motion filed 23 June 2009 be made returnable instanter.

2) the said Notice of Motion be heard ex parte.

3) That the plaintiffs have leave to file the summons in this matter.

4) That no publication that would identify or tend to identify the child the subject of these proceedings ("the child") occur except for the purpose of the proper conduct of the proceedings.

5) That the proceedings be heard in a closed court.

6) That the proceedings be known as Re Sally and that the subject of the proceedings be known as Sally.

7) That the child be separately represented and it is requested that the legal aid commission of New South Wales arrange such representation and to that end plaintiffs will provide the commission with a copy of the Summons, the Notice of Motion, these orders and the affidavit of the Manager Client Services by 5pm today to assist in obtaining early representation for the child Sally.

8) That the summons filed in the proceedings be made returnable on 23 June 2009 at Sydney.

9) That service of the summons on the first defendant be expedited to 5pm on 24 June 2009.

10) That service of the summons on the second defendant be expedited to 5pm on 26 June 2009.

11) That until further order the Director General of the Department of Community Services ("the Director General") is authorised to:


a) accommodate the child Sally at premises known as ("the premises"); and,

b) use whatever means are reasonably necessary to ensure that Sally remains at those premises.


12) That the Director General is authorised using whatever assistance the Director General or her nominee(s) may deem appropriate, to take the child Sally to the premises.

13) That until further order the Director General using whatever assistance may be necessary, is authorised to:


a) furnish Sally with such treatment and nursing care as in her opinion (in accordance with medical advice) is necessary;

b) administer medication and sedation to Sally (in accordance with medical advice); and,

c) use, as far as is necessary, reasonable force in doing either 12(a) or 12(b).


14) The summons and Notice of Motion are returnable before his Honour at 10am on Tuesday 30 June 2009.

15) That the parties have liberty to apply on 24 hours' notice.

16) That the orders made in the proceedings today be entered forthwith.”

3 The proceedings were returned before the Court on 30 June 2009. There were appearances that day on behalf of Sally’s parents and by a separate representative who had been appointed pursuant to order 7 of the orders made on 23 June. Further evidence was led that day. The hearing on that day is already the subject of a separate judgment.

4 In two subsequent hearings on 19 August 2009 and 30 September 2009 after a review of Sally’s circumstances after a period of confinement at the premises, the ex parte orders made on 23 June were not varied. The orders I made on 23 June and confirmed on 30 June were exceptional. In light of the exceptional nature of these orders I indicated to the parties that I would publish reasons for making them. These are those reasons. A separate judgment will deal with the later hearings on 19 August and 30 September 2009.

5 The background that led to the making of these orders commences very early in Sally’s life, when some of the first signs emerged that evolved into her later behavioural problems. The background set out below is detailed but it must be because of the long course of Sally’s troubled behaviour.

Sally’s Background

6 On 11 August 1994 an order was made by the Children’s Court that Sally be placed under the interim care of the Minister.

7 Shortly after her first birthday, the Children’s Court made an order making Sally a ward of the State for three years until May 1998.

8 As a result of psychological assessment it was recommended that Sally be placed in permanent foster care, with assistance being given to her carers in relation to her behaviour management.

9 Only three months before her fourth birthday, Sally was assessed by a paediatrician. He reported that her behaviour both at home and at school had become increasingly intolerable, and was appropriately described as hyperactive, fidgety and aggressive.

10 Later Sally was placed with a residential agency as her immediate foster care placement had broken down. Sally was charged with two separate counts of malicious damage to property. Bail was refused.

11 Sally was released from detention to return to a residential agency.

12 In November 2004 Sally came before the Children’s Court. She requested that she be returned to her family’s care. The Court placed Sally with her maternal grandmother. The placement broke down about a week later due to Sally absconding and breaching her bail conditions. Sally was returned to a Juvenile Justice Centre.

13 On 25 November 2004 Sally was placed in residential accommodation with a specialised service.

14 In early June 2005 the service took over Sally’s case management.

15 Sally was arrested on charges of malicious damage and came before the Childrens’ Court. Considerable insight into her overall mental functioning at this time is provided through a report of a psychologist who reported on her on 13 June 2005. The psychologist was asked to assess her overall mental condition and the extent to which that disabled her behaviour or directly contributed to the offence with which she was charged. The psychologist’s conclusions throw light upon Sally’s overall situation at the age of 11. Some of the matters covered by the psychologist are issues that became relevant again in the present proceedings some four years later.

16 The psychologist considered what could be done for Sally with the available resources. He was concerned that she did not respond to even specialised educational environments and that “her level of irritability, risk of harm to others, unpredictability and self absorption makes her too dangerous to live in community setting with other young people”. He suggested the following:

“Unfortunately I can see no prospect for her unless she is placed within a therapeutic environment that can also attend to her security needs. Ideally an organisation such as Redbank or Rivendell would be appropriate but I have no hope that these places would accept such a referral, on security grounds alone. It is completely unacceptable that she be placed in an adult psychiatric facility. It is a sad conclusion that the resources that she needs, a secure, psychiatric unit for children, is not apparently available.”

17 This opinion was an early indication of the continuing need for Sally to be placed in the kind of environment in which the orders of this Court have now, some years later, required her to be detained. When looking at the kinds of placement that would be suitable for Sally back in 2006 the psychologist commented that she “lacks the internal psychological organisation to make use of help, and, more like a child needs the structure and intervention of people around her to take control of her treatment process”. The psychologist linked Sally’s progress with the motivation of the agencies working with her, cautioning that “the patience required to work with her would be enormous. The gains would be small and easily reversible”.

18 The psychologist summarised Sally’s future needs with the following conclusion:

“The reality is that this is a child who at the age of 11 years old has been unable to be successfully managed within the community even though management has included what is little short of a chemical straight jacket. The Departmental file makes it clear that she has exhausted all the “usual” community supports. It seems that her needs can only be met within a highly structured, residential setting developed along therapeutic principles at this point of time. Such a setting will have to have a primary mental health focus. The degree of intervention involved in this matter will have be of maximum intrusiveness in order to ensure safety as well as any potential for maintaining the kind of consistency in the environment that will be necessary to gain control of her behaviours. I am unable to identify any such setting at this stage.”

19 Despite this report Sally stayed for a period at the only place that then seemed to provide her with many of the elements of what she needed, the residential service provider.

20 On 24 June 2005 Sally was temporarily placed with another residential service. Sally was then placed in a Juvenile Justice Centre. On 21 November 2005 she was released into the care of the adolescent mental health unit, one of the possibilities considered by the psychologist.

21 On 19 December 2005 Sally was placed with the residential service provider in a funded placement. This was an intensive placement in an effort to stabilise her behaviour. The move to the residential service provider was another experiment to see if an appropriate placement in a suitably secure and therapeutic environment could be found for her.

22 In early 2006 Sally changed to a School which was her fifth school placement. Despite the many other changes in her life there was at least some continuity in the psychological assessments that Sally was receiving. She was assessed again by the psychologist for review on 8 March 2006 and 18 August 2006. The fact of these assessments by the same expert over time is of considerable value. In the first of those two reports the psychologist restated his opinion that the principal issues that were to be faced in establishing an appropriate treatment plan for Sally had not changed. He found that she remained in need of a stable, secure and therapeutic environment for a considerable period. In what was by then a familiar problem he was unable to identify a service that would provide such an environment. The principal difficulty at her then age was the fact that she was pre-adolescent and was not yet eligible for specialised adolescent services. Sally presented to the psychologist as he described, “a high needs girl but without the appropriate treatments required”. The dilemma that the psychologist faced about finding the right treatment venue for Sally’s particular needs has been a continuing problem right up until 23 June 2009 when the Court made its ex parte orders.

23 The psychologist reported again on 18 August 2006. The psychologist thought that Sally really required a period of in patient treatment. He thought the best pattern for her would be to go back to the adolescent mental health unit where her behaviour could be stabilised. He thought that following a period at the adolescent mental health unit her accommodation could resume at the residential service provider with active support from Mental Health Services. He stressed the need for all the service providers involved with Sally to attend a case conference and to agree upon a clear treatment plan for her future care. It is unclear whether this actually occurred.

24 Sally’s placement at the residential service provider continued. It was unsatisfactory in a number of ways as was reported upon by psychologist who examined her in September 2006. This psychologist recorded that at the special school that Sally attended, she was exhibiting no specific behavioural problems and that she had received high praise from some of the staff at the residential service provider centre. Indeed she was described by them as “an extremely angelic girl”. This psychologist concluded from her examinations:

“Thus, it seems [Sally’s] behaviour can vary according to her circumstances and her motivations. [Her supervisor] believes she is quite an intelligent child, “street smart” and has learnt how to look after herself. The behaviour she engages in enables her to take control of the situation and to take power.”

25 This psychologist disagreed with the psychologist about whether Sally had more than a basic knowledge of right and wrong but her overall conclusions about Sally’s risk of harm to self and to others in the community was similar to those of the psychologist. She said:

“... I have formed the opinion that [Sally] does suffer from a mental condition characterised by frequent mood changes and some aggressive and non compliant behaviour. She remains thus a risk for harm of others in the community, and consequently requires an extremely structured environment entailing the setting up of rules and consequences of her antisocial behaviour. The current carers, the residential service provider do not provide this strict regime, which would be necessarily a closed facility for a specified length of time.”

26 After expressing extreme concern about her record for a person of such a young age this psychologist recommended that every effort should be made to provide Sally with a comprehensive treatment regime either in an institutional setting such as a Juvenile Justice Centre or a therapeutic community such as the adolescent mental health unit. This psychologist’s opinion was that if Sally did not obtain such treatment her prognosis remained extremely poor.

27 It seems from the records available that despite these recommendations Sally remained at the residential service provider centre where incidents continued to occur. Between 19 December 2006 and 9 January 2007 she was involved in a number of serious incidents at the Centre. Sally was detained in a Juvenile Justice Centre as a result of these incidents.

28 In May 2007 incidents of aggressive and anti social behaviour in her life intensified. On 12 January 2007 Sally was admitted to an Adolescent Psychiatric ward at a Hospital due to ongoing acts of self harm and the assault of carers.

29 Initially at the residential placement Sally was generally compliant with medication but she did engage in a number of verbal and physical assaults and caused property damage and damage to a worker’s car there.

30 The residential placement attempted to develop a number of management strategies in response to Sally’s behaviour. Until early April 2007 these appeared to be modifying her behaviour. This relatively benign change in her overall mood only lasted until the end of the first week of April.

31 On 8 April 2007 Sally became physically and verbally aggressive. It resulted in Sally being charged and refused bail and being placed in a Juvenile Justice Centre. She was there until 30 April 2007, when she was released back into the care of the residential placement.

32 Sally's entry into her teenage years was marked by an explosion of violent behaviour directed both to others and to herself.

33 On 28 November 2007 the Childrens’ Court ordered that Sally be placed under the parental responsibility of the Minister for Youth and Community services until she attained the age of 18.

34 Sally ended 2007 before the Childrens' Court. On 19 December 2007 a hearing in respect of the many charges against her took place at the Childrens' Court. The matters before the Court included charges of assault occasioning actual bodily harm and other charges of lesser gravity. Her situation presented problems of great perplexity for any Childrens' Magistrate. On this occasion the Court had the benefit of oral evidence from the psychologist. As such oral evidence often does, it added immediate force to the assessment of his written medical reports. He expressed his opinions with a directness which is valuable. A number of parts of his evidence are worth recording for present purposes.

35 First, he offered a view about Sally's circumstances in relation to other children within the care system and children who he had assessed.

36 Secondly, he expressed a depressing frustration at the capacity of available services to deal adequately with her situation in the following terms:

"The - possibly the single greatest difficulty as a result of that we have is that we are unable to access appropriate therapeutic services for her because of the uncertainty of her diagnostic state and because of her extremely challenging behaviour, services that don’t want to be bothered with her can get out of it and that's exactly what's been happening, I mean in terms of the mental health services."

37 Sally's behaviour in 2008 through to her 14^th birthday and beyond largely repeated the patterns of behaviour that have been set out in respect of her earlier years. Some specific features of what occurred in 2008 deserve separate mention.

38 Throughout the rest of 2008 a new psychiatrist took over the close management of Sally, especially in relation to her medication. He saw her in June, July, August and September of that year. He spent considerable effort in adjusting the correct levels of her medication. He found that her compliance with medication regimes was erratic. Medication did not prevent her being involved in further incidents of fire setting attracting police attention, claims of overdose and ailments, continuing anxiety, some (though a diminished number of) assaults on her carers and absconding to her mother's home.

39 As had often been the case earlier with Sally's care, a period not particularly remarkable for its incidents came to a rapid end with a dramatic incident drawing attention to herself and putting herself and others at serious risk of harm.

40 Sally was placed in detention. She was released from the Juvenile Justice Centre.

41 On 20 December 2008 Sally was transferred into emergency accommodation. She had a placement there until 5 January 2009. Despite that placement she spent most of her days and nights during this period at the Hospital. She presented at emergency with numerous ailments.

42 On 5 January 2009 Sally went back to her placement with the residential placement. There incidents involving self harm, threats and assaults upon her carers continued. Sally was charged with assault and placed in detention.

43 Sally turned 15. As had been the case in previous years an increase in the frequency and intensity of self harm or anti social behaviour occurred around her birthday.

44 On 26 May 2009 Sally was transferred to the adolescent mental health unit for a three week assessment period. This admission was primarily to assess Sally's level of depression.

The Situation on 23 June 2009

45 When this matter came into the Equity Duty list on 23 June 2009 Sally was due to be released by the adolescent mental health unit into the general community. The adolescent mental health unit was not prepared to hold her any longer. A report on her immediate treatment and care options dated 22 June 2009 was prepared for the court by the director of the adolescent mental health unit.

46 The Director of the adolescent mental health unit opinion was that the institutional setting at the adolescent mental health unit did seem to have settled Sally. The Director of the adolescent mental health unit was also of the opinion that Sally needed a setting where there were opportunities for her to re-engage with her family.

47 Two particular paragraphs in the Director’s report resonated strongly with the opinions expressed in the prior reports that have already examined in these reasons. In addition to Sally’s long history of self harming behaviour and deliberate exposure of others to the risk of serious injury, the Director’s evidence, in these paragraphs and in the balance of her report was influential in my decision to make the orders which I made on 23 June 2009. These paragraphs speak of the need for Sally to have fundamental safety and stability so that her treatment can be given a chance to succeed. They are the following.

"[Sally] needs to be both safely contained and given treatment to enable her recovery over the next few years. The treatment is not possible without the containment, and her recovery needs a combination of informed care, sustained therapy and developmentally appropriate experiences. This combination is likely to be needed in the medium term, to enable safety and stability to be established and [Sally] could benefit from longer and more effective intervention."
… "My genuine experience of [Sally] is that she feels safer in an institutional setting than in ordinary care.

48 At the hearing in 23 June 2009 the manager client services gave also oral evidence that updated the Court in relation to Sally’s situation in several important ways. That evidence may relevantly be summarised as follows:

(a) Sally was admitted to the adolescent mental health unit for a four week period to assess her level of depression but it was hoped that the Department of Health would be able to keep her because of the concern about how she would fare back in the community.

(b) It was decided only on 22 June 2009 that the Department of Health would no longer be able to keep Sally at the adolescent mental health unit for what were described as “medico/legal” reasons. I should observe at this point that it was no part of these proceedings to review this decision of the Department of Health but merely to deal with its practical consequences so far as Sally was concerned.

(c) Sally had been admitted to the adolescent mental health unit after the incident in which she had attempted to drown herself in the bath. She was initially admitted to a hospital Intensive Care Unit and she was then scheduled under the Mental Health Act and admitted to the adult psychiatric unit at a Hospital, due to the level of depression and self-harm that she had shown. Her time at the adolescent mental health unit involved the continuous assessment of her levels of depression after she was discharged from the Adult Psychiatric Unit.

(d) Sally was initially an involuntary patient at the adolescent mental health unit but became a voluntary patient once her behaviour settled.

(e) The agency involved with Sally over the last few months, had been trying to build a relationship with her so when she left the adolescent mental health unit she would come under the care of the agency.

(f) However, it was thought that a placement with the agency outside the secure environment of the premises may be very unstable in Sally’s case because:
(i) Sally’s placements with the agency have broken down, at short notice in the past.
(ii) The arrangements that the agency have with the Department with respect to a particular child can be terminated by the agency at any time and that has occurred with other children.
(iii) Termination can occur at the agency’s option if the risk associated with caring for a particular child is perceived by the agency to be too high.
(iv) Only a small number of the approximately 16 staff who would be rostered on at the house have worked with Sally before and they therefore have not experienced the intense challenges she presents to carers at times.

49 On the evidence of Sally’s history, showing as it does frequent breakdowns in her placements because of her violent explosive behaviour towards her carers, I find that there is a very high probability that a placement with the agency would break down, if Sally were to be discharged into their care or to any similar agency. This was the manager client service’s fear as to what would be likely to happen. On the evidence that fear is well justified.

50 If the agency arrangements were to break down, Sally’s only short term safety net would be for two Departmental Officers to attempt to stay with her in a motel and supervise her, whilst trying to find more permanent accommodation. In view of Sally’s history, it is in my view quite unsatisfactory at several levels to accept the probable overall risk that Sally be left in motel accommodation under the supervision of the Departments officers. This is unacceptable because:

(a) the personal risk of violence to the two Departmental officers

(b) the risk of violence to other motel employees or guests

(c) the increased risk that Sally will be able to find some object or situation in such an environment that would allow her to harm herself, and

(d) the fact that such a temporary situation is essentially a deferral of an important decision to find a more permanent and more suitable placement for Sally to allow her to be treated – a decision that needs to be faced now for her benefit.

51 As the agency is an inherently unstable option for Sally, manger client services gave evidence about the advantages of placing her at the premises, the facility that was proposed to receive her if I made the orders being sought on 23 June 2009.

(a) The proposal is to engage a psychologist employed by the Department, for Sally’s therapy whilst she is at the premises. She has had little opportunity to engage in long term therapy in the past, other than for a period with a psychiatrist.

(b) The agency is an institutional setting where on the basis of Sally’s prior reactions to institutional care, it could be expected that her risk of self harm and harm to others will fall after a few weeks, unlike a place within the general community.

(c) Sally would have her own staff to attend to her. There are security guards at the premises. Sally’s accommodation at the premises would mean there is a greater likelihood of Sally’s being in the continuous care of the one youth care agency rather than termination of care occurring.

(d) The premises is regarded as providing the best opportunity for Sally to receive the long term therapy that would not otherwise be available to her.

(e) The premises is a facility that has ongoing funding for the medium term. The property is owned by the Department of Community services and there is a high commitment to keeping it going.

(f) Orders of a similar kind to those proposed for Sally have been made by the Supreme Court in respect of the two other children who are the only other residents in the premises.

(g) One of those other children is the child, Thomas. The facilities at the premises are still the same as were described by Brereton J for Thomas in paragraph [14] of Director General, Department of Community Services v Thomas [2009] NSWSC 217, at [14]:

“The unit is a secure residential facility. I had the benefit of a view of the premises. Thomas and Nellie were present. The premises are situated in a suburban street. The accommodation section adjoins an administration section. Thomas’ bedroom is spartan, with only a mattress on the floor — but it must be while he remains predisposed to extract screws and nails from furniture to inflict self-harm. There is a large recreation room, with television, Wii, and other entertainments. There is a meals area, and a large courtyard, with a shaded area, allowing ample space for physical activity. There are two care staff with Thomas at all times, who are shadowed by two trained security guards. If restraint is required, it is the security guards who provide it. Although fenced, and secured, the premises did not have the feel of a gaol. By refraining from self-harm for the day, Thomas can earn an afternoon walk in the streets.”

(h) The premises is guarded by security guards. Only in an extreme case of Sally attempting to escape or inflict harm on herself would the security guards be needed to interfere directly in what she is doing. Otherwise she would deal with youth workers. Sally would have her own separate room at the premises but share some bathroom facilities with the other female resident Nellie.

(i) A daily plan for Sally’s stay at the premises would be developed quickly if orders were made to keep her there. I requested that a management plan for her be made available for the first return date of the summons.

52 It was in the background of this evidence that the Department made submissions that Sally be subject to the orders that I made and be placed at the premises. On 30 June 2009 on the return date all the legal representatives before me submitted that this was still the appropriate course and that Sally should be confined in secure premises to allow her to be treated. The available choices for Sally were limited by the risk she presented of self harm and harm to others in her behaviour. Sally’s release into the general community without close supervision presented grave risks. Existing legal authority describes the Court’s power to make the orders sought. The principles that inform this exceptional power may be shortly stated.

Applicable Legal Principles

53 This application is brought within the Court’s parens patriae jurisdiction. This jurisdiction derives from the royal prerogative. Its origins date back to the time of Edward III. In recent times the Chancery Division in England and the Equity Court in New South Wales have been responsible for exercising the Queen’s power to do good to all her subjects, particularly those who are children or who are otherwise incapable of looking after themselves: Re Frances and Benny [2005] NSWSC 1207, per Young CJ in Eq at [17]. In exercising that jurisdiction the Court’s concern is predominantly for the welfare of the person involved and is not a jurisdiction bogged down with technicalities: Re Frances and Benny [2005] NSWSC 1207 at [17]. The parens patriae jurisdiction is based on the obvious necessity that the law provide for the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them: Wellesley v Duke of Beaufort (1827) 38 ER 236, at 243, per Lord Eldon LC. The jurisdiction is one in which the Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise affectionate, and careful parent would act for the welfare of the child: Secretary of the Department of health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218, at 279,280 per Brennan J. Indeed, it has been said that no limit has ever been set to the jurisdiction and that it extends as far as is necessary for the protection and education of children, although it is to be exercised with caution: Re X (A Minor) [1975] 2 WLR 335, at 342.

54 There are some practical limits as to the manner of exercise of the jurisdiction, which may require resort to statutory powers in some situations. For example it is doubtful that the Court has power within the parens patriae jurisdiction to make an order conferring authority on officers of the New South Wales Police Force to search and take custody of a child; the jurisdiction does not confer authority on others – such as medical practitioners - in respect of a child, although the Court can assume, and delegate parental responsibility or aspects of it: see Director General, Department of Community Services v Jules [2008] NSWSC 1193, commenting on a similar limitation in respect of the Court’s habeas corpus jurisdiction noted by Powell J in Vaughan v Vaughan (NSWSC, Powell J, 27 February 1979, unreported).

55 One aspect of the jurisdiction is the authorisation of acts and decisions in respect of children which fall outside the scope of parental and guardian’s decision-making powers. The exercise of the jurisdiction is not merely supervising or reviewing parental or guardian’s care and control but extends to the giving of consent to an operation that parents or guardians would not have power to give: Marion’s Case (1992) 175 CLR 218, at 258, 259 and note the power to sterilize a minor with intellectual disability (not for therapeutic reasons) exercised in Marion’s Case. Contemporary descriptions of the parens patriae jurisdiction over children accept that there is no limit on the jurisdiction: DoCS v Y [1999] NSWSC 644, at [90].

56 Although the parens patriae power has most often been invoked to authorise medical treatment it has been applied to a wide variety of situations, as Latey J said in Re X [1975] 1 All ER 697 at 699, “…the jurisdiction is of a very broad nature, and …can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations”. Orders have been made in England and in this jurisdiction interfering with personal integrity and the liberty of children sufficiently often that it must now be accepted that the parens patriae jurisdiction permits them: Director General, Department of Community Services v Thomas [2009] NSWSC 217, per Brereton J at [34]. In Re W [1992] 3 WLR 758 the Court of Appeal upheld a court order for the treatment of a young person with anorexia nervosa, who was ordered by the court to remain at a clinic until discharged by her doctor or further order, with the court’s order providing for the use of reasonable force if necessary to detain her. In DoCS v Y [1999] NSWSC 644 Austin J made orders returning a child to the Children’s hospital without her consent to resume a course of treatment for anorexia nervosa and the order authorised hospital staff to detain her by using reasonable force if necessary. Similar orders were made by Brereton J in Director General, Department of Community Services v Jules [2008] NSWSC 1193 and Director General, Department of Community Services v Thomas [2009] NSWSC 217.

57 Nevertheless the jurisdiction is one that must be exercised with great caution and generally the greater the interference with the liberty of the child the greater the caution that is required: Director General, Department of Community Services v Thomas [2009] NSWSC 217 at [35] per Brereton J. In Frances and Benny [2005] NSWSC 1207 Young CJ in Eq (as his Honour then was) said the parens patriae jurisdiction should only to be exercised “in exceptional cases”.

58 Australia is a signatory to the United Nations Convention on the Rights of the Child (CROC). In the exercise of a discretion a Court may have regard to an international obligation or agreement which has been ratified by Australia, though not otherwise incorporated into domestic law- unless the domestic law prohibits it: Murray v Director Family Services, ACT (1993) FLC 92-416, 81,255-256. When the parens patriae jurisdiction is exercised the Court should take into account the provisions of CROC as a relevant although not a conclusive consideration: see the reasoning of Brereton J in Director General, Department of Community Services v Thomas [2009] NSWSC 217 at [37]. Article 37 of CROC relevantly provides as follows:

Article 37

States Parties shall ensure that:

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(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.

59 Deprivation of a child’s liberty for protective purposes through a “secure accommodation order” under the Children Act 1989 (UK), s25 has been held in the UK not to be incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms and may be justified by protection and promotion of the child’s welfare: In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2WLR 1141 and Director General, Department of Community Services v Thomas [2009] NSWSC 217 at [38].

60 The Director General seeks the detention of Sally until further order in a secure unit at the premises and to restrain and medicate her as the circumstances may require. There is no statutory basis for permanently detaining a child, such as Sally, for her treatment and protection. Section 158 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), permits only temporary restraint for limited purposes to prevent injury to any person. The source of the power for the orders being sought here is in the parens patriae jurisdiction which authorises the making of such orders. This analysis follows closely the careful analysis of these powers by Brereton J in Director General, Department of Community Services v Thomas [2009] NSWSC 217.

Consideration of these Principles

61 As I am satisfied that there is power to make the orders sought, the question arises whether they should be made. It is necessary to make the orders sought in relation to Sally upon the following considerations.

62 There is no reasonable alternative to making these orders. All recent arrangements for Sally’s care and accommodation have broken down. None of the evidence before me suggests that if they were to be tried again that they would have any greater chance of success now than they had before.

63 Allowing Sally to be released into the general community now is not an acceptable option. Sally is too great a risk of immediate harm to herself and to others. Even if it were to be considered, the closest supervision of her would be required. There is no evidence before me that such supervision is available and is practical. Under any such regime her carers who have already been the object of her violence would be particularly vulnerable. Indeed given the nature of Sally’s attacks, that there has not been a more serious injury to one of her carers as yet than has been reported is remarkable. Whether intentionally or as a result of an accident she is likely to kill or do grievous permanent injury to herself if she is not very closely supervised.

64 The medical and psychological evidence supports the making of the orders. Specifically the stability that the premises environment would give is the only background in which Sally will have any hope of responding to the therapy that she needs. The therapy proposed to be undertaken with the community service’s psychologist is one of the few remaining opportunities to reverse Sally’s behaviour. In Sally’s best interests it should be given every chance to succeed. Indeed the history of the medical and psychological assessments of Sally recounted above shows that her professional advisors have thought for quite some time that she has needed therapy in such an environment as the premises.

65 The departmental evidence from experienced officers familiar with her case supports the making of the orders and that the premises is a suitable place for Sally’s immediate needs.

66 The caution that must be exercised in making orders such as these is overcome by the many factors that point to her need for therapy in a secure environment such as the premises and the unacceptable dangers to her and to others presented by all other alternatives.

Conclusion

67 In the crisis ridden course of Sally’s young life there have been few opportunities to assess not only her welfare but at the same time to judge her care by medical practitioners and by the departmental officers who have been charged with her case management. This judgment is one of those occasions. These reasons show why the Court has made and continued the orders that it has. Part of my reasoning has involved making judgments about the work of Sally’s doctors and Departmental case workers.

68 Consideration of Sally’s history and my reasoning involves my making an incidental finding. On the evidence before me the medical practitioners that I have mentioned have thoroughly considered Sally’s treatment options after struggling closely with the difficulties of her case. They have striven to achieve the best medical outcome for her. I have also been able to assess the work of the various departmental officers who have been recently involved with Sally. They have given evidence or been referred to in evidence. They appear to the Court to have exhaustively dedicated themselves to obtaining the best care result for Sally within the resources available. Limits on the options for Sally are not due to any want of energy or imagination on their part.

69 Sally is being detained under these orders to provide a safe and stable environment for her continuing treatment which is designed to reduce the risk of harm she presents to herself and to others. Sally’s treatment and overall progress will be reviewed regularly in accordance with the Court’s directions. The aim is for the current regime of orders to be ended as soon as is compatible with the satisfactory completion of her treatment.

70 For these reason I made the orders set out in [2] above on 23 June 2009.

71 After the making of these orders the summons was returnable on 30 June 2009. On that first return date, I gave a separate judgment on a number of issues raised on Sally’s behalf by her separate representative about her immediate environment. Those issues were determined that day.

72 On that return date both Sally’s parents appeared. The separate representative appointed pursuant to order 7 of the orders made on 23 June 2009 also appeared. Neither Sally’s parents nor the separate representative opposed the continuation of the orders made ex parte on 23 June.

73 On 30 June the evidence reported on Sally’s satisfactory transfer to the premises and her positive early interactions with the other two residents there. In the first week at the premises Sally unsuccessfully deployed a number of devices to avoid the discipline, routine and educational requirements of the premises. On one occasion security staff were needed to restrain her aggression towards one of the other residents and to end an episode of feigned unconsciousness. Generally though her adjustment to her new environment in the first week was slightly better than might have been expected given her history of reactions to changed environments. This was partly due to Departmental officers reassuring Sally of the continuity of her contact with several of the personnel with whom she was already familiar and then ensuring that that continuity occurred after the transfer to the premises.

74 At this hearing the Court was provided with an Intervention Support Plan for Sally outlining Sally’s routine, a risk management strategy and the basis of her behaviour incentives and a support program. The Court was also provided with an organisational structure for the premises. This evidence demonstrated that the environment at the premises for Sally was as had been foreshadowed at the ex parte hearing. Importantly Sally commenced the planned therapy with the community service’s psychologist on Monday 29 June 2009. These therapy sessions are planned to occur weekly. The result of and prognosis of that therapy over time will be one important points of reference for future judgments about the continuation of the orders made about Sally.

75 At the time of publishing these reasons for making my orders on 23 June 2009, Sally’s situation at the premises has been reviewed twice. On neither of those reviews did I vary the orders made on 23 June 2009, which continued. The first review by the Court of Sally’s situation at the premises took place on 18 August 2009. A second review by the Court took place on 30 September 2009. Before the second review I visited the premises on 22 September 2009. Sally was at the premises during this visit. I will shortly deliver a separate judgment about these two reviews.