Re Tracey

The case of *Re Tracey* concerned an application by a mother for parental responsibility of her child, who was under the parental responsibility of the Minister. The existing care plan involved two carers, but one had since died. The appeal was heard by Spigelman CJ, Beazley JA, and Giles JA.

The legal issues before the court were whether the District Court had erred in its application of the principle of least intrusive intervention under section 9(2)(c) of the *Children and Young Persons (Care and Protection) Act 1998* (NSW), and whether it had committed jurisdictional error by failing to consider a revised care plan and by rejecting the relevance of treaty obligations under the Convention on the Rights of the Child.

The court, comprising Spigelman CJ and Beazley JA, reasoned that the principle of least intrusive intervention was confined to situations where action was necessary to protect a child from harm, and did not apply to the question of whether existing care arrangements should be displaced. They further held that consideration of a care plan, as required by section 80 of the Act, necessitated a plan relevant to the current circumstances, implying the need for a revised plan. Additionally, they considered that treaty obligations under the Convention on the Rights of the Child were capable of being a relevant consideration in the exercise of discretion.

The court ordered that the decision of the District Court of New South Wales made on 28 July 2010 be quashed and that the proceedings be remitted to the District Court to be heard and determined according to law, with no order as to costs.