The Secretary, Department of Family and Community Services v Allana Pearl Smith

[2016] NSWSC 1384

Supreme Court

New South Wales

Medium Neutral Citation:	The Secretary, Department of Family and Community Services v Allana Pearl Smith [2016] NSWSC 1384
Hearing dates:	Wednesday, 7 September 2016
Date of orders:	07 September 2016
Decision date:	07 September 2016
Jurisdiction:	Equity
Before:	Brereton J
Decision:	Refer para 29
Catchwords:	FAMILY LAW AND CHILD WELFARE – where injunction granted ex parte preventing publication of information that child is under parental responsibility of Minister – whether injunction should be continued on interlocutory basis – application of (NSW) Children and Young Persons (Care and Protection) Act 1998, s 105 – held, not sufficient to support injunction – parens patriae – scope –recognition that child entitled to keep private involvement in and association with care proceedings – best interests of the child – public interest – information already in public domain – held, there is a serious question to be tried – held, on balance of convenience injunction be continued on interlocutory basis until hearing
Legislation Cited:	(NSW) Children and Young Persons (Care and Protection) Act 1998, s 105 (NSW) Children (Care and Protection) Act 1986, s 68 (UN) Convention on the Rights of the Child, Article 16 (CTH) Family Law Act 1975
Cases Cited:	Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Gee v Pritchard (1818) 2 Swan 402; 36 ER 670 Director-General, Dept of Community Services, Re; Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220; Waters v Pacific Publications Pty Ltd [1999] NSWSC 366
Texts Cited:	Farmer, Selqyn and Meakings, ‘Other children say you’re not normal because you don’t live with your parents’. Children’s views of living with informal kinship carers: social networks, stigma and attachment to carers, Child and Family Social Work 2013 Vol 18, Feb 2013, pp 25-34. Rest, E and Watson K, ‘Growing up in Foster Care’ Child Welfare Vol 63, pp 291-306.
Category:	Procedural and other rulings
Parties:	The Secretary, Department of Family and Community Services (plaintiff) Allana Pearl Smith (defendant)
Representation:	Counsel: J Harris (solicitor) (plaintiff) A Smith (defendant)(in person w Ms C Walker as friend)   Solicitors: Crown Solicitor’s Office (plaintiff)
File Number(s):	2016/266559

Judgment (EX TEMPORE)

1. HIS HONOUR: On 2 September 2016, the Court granted leave to the plaintiff Secretary, Department of Family & Community Services, to file a summons initiating these proceedings, and an ex parte injunction restraining the defendant Allana Pearl Smith until and including 7 September 2016 – that is to say today – from further publishing whether in writing or by internet or any other electronic means information conveying that the child the subject of these proceedings, has been placed in foster care and/or is under the parental responsibility of the Minister for Family & Community Services and/or is a ward of the state or to similar effect; and commanding the defendants to remove from the Walking Warriors 4 Missing Children Facebook page any posts which convey those matters. The Court also ordered that there be no publication which would identify the child as connected with these proceedings save to the extent necessary to implement these orders, and reserved liberty to the defendant to apply to the Duty Judge to vary or set aside the orders. The summons was first returnable before the Court today. I have indicated that the matter can be heard on a final basis on Tuesday 15 November, and at the conclusion of this judgment I will make some directions to ready the matter for hearing that day.

2. The question which presently requires consideration by the Court is whether the injunction granted ex parte on 2 September 2016 should be continued on an interlocutory basis pending that hearing. It is important to appreciate that this does not involve predetermining what will be the outcome of that final hearing, but only what is the appropriate position to pertain until the matter can be finally and properly heard. So on an application of this kind, the Court is concerned essentially with two matters: first, whether there is a seriously arguable case for final relief; and, secondly, whether the balance of convenience favours granting or withholding interlocutory relief in the meantime.

3. The child – to whom I refer in those terms in order to avoid further identification in connection with these proceedings – disappeared some years ago. It is not presently known whether the child is alive or dead. A police investigation into the disappearance continues. The case and the name of the child are well-known publicly. At the time of the disappearance, the child was in the responsibility of the Minister and placed with foster carers. Those matters are not well-known publicly. The defendant is an advocate for children's rights and interests. In the course of promoting a coronial inquest into the child's disappearance, the defendant wishes to publish a petition and online statements, which would include information to the effect that the child was in foster care, and/or was a “state ward” at the time of the disappearance.

(NSW) Children and Young Persons (Care and Protection) Act 1998, s 105

4. The first basis upon which the Secretary supports the injunction is in order to prevent an offence against (NSW) Children and Young Persons (Care and Protection) Act 1998, s 105, which relevantly provides as follows:

(1) The name of a child or young person:

(a) who appears, or is reasonably likely to appear, as a witness before the Children’s Court in any proceedings, or

(a1) who is involved, or is reasonably likely to be involved, in any capacity in any non-court proceedings, or

(b) with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

(c) who is, or is reasonably likely to be, mentioned or otherwise involved in any proceedings before the Children’s Court or in any non-court proceedings, or

(d) who is the subject of a report under ss 24, 25, 27, 120, 121 or 122,

must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

5. As presently minded, I think s 105 has very doubtful application to these circumstances. The predecessor section, which was the (NSW) Children (Care and Protection) Act 1986, s 68, was considered by Studdert J in Waters v Pacific Publications Pty Ltd [1999] NSWSC 366. His Honour held (at [44]) that s 68(1) was not to be given such a broad construction as to create an offence in the case of a publication where there was no specific reference to the care proceedings concerned. Applied to the present section, that would mean that there would be no offence where the publication in question involved no specific reference to the proceedings, non-court proceedings or report referred to in the various subparagraphs of s 105(1). As in Waters a mere reference to the fact that the child was in foster care did not have that effect, so in the present case a reference that the child was in foster care or a state ward, without specific reference to the care proceedings, would not constitute an offence.

6. In any event, equity rarely grants an injunction to restrain the commission of a criminal offence. As Mason J (as the later Chief Justice then was) said in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 (at 49):

The issue of an injunction to restrain an actual or threatened breach of the criminal law is exceptional. The right to invoke the aid of the civil courts in enforcing the criminal law has been described as ‘of comparatively modern use', which is 'confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty ... or to cases of emergency' (Gouriet v Union of Post Office Workers (1978) AC 435 at p 481, per Lord Wilberforce. See also pp 491, 497-500, 519-521).

7. In short, an injunction may be granted to restrain the commission of a criminal offence where the criminal remedy is inadequate or inexpedient, but it is not an ordinary course.

8. That said, it has long been recognised that there is an exception in cases concerning the welfare of children. In Gee v Pritchard (1818) 2 Swan 402; 36 ER 670, Lord Chancellor Eldon observed:

The publication of a libel is a crime and I have no jurisdiction to prevent the commission of crimes, excepting of course such cases as belong to the protection of infants where dealing with an infant may amount to a crime - an exception arising from that peculiar jurisdiction of this Court.

9. That was reference to the parens patriae jurisdiction of the Court of Chancery. In itself, that illustrates that the intervention of the Court by injunction in the case of a child is not in aid of the criminal law, but an exercise of the parental jurisdiction.

10. Accordingly, were the matter to depend solely on Care and Protection Act, s 105, I do not consider that there would be a sufficiently seriously arguable case to warrant the grant of interlocutory relief.

The parental jurisdiction

11. That brings me to the parental jurisdiction, which the Secretary also invokes. It has often been observed that the parental jurisdiction of this Court is a far reaching one which extends to virtually anything that is judged to be necessary in the interests of a child (or other person) under its protection. [1]

    1. See for example Re Thomas [2009] NSWSC 217

12. In this case, the interest of the child in question is essentially one to maintain privacy in respect of the child’s affairs and status, in particular in relation to matters which if publicised might result in stigmatisation of the child.

13. That society recognises a child's interest in and right to privacy is manifested by a number of legal norms. The (UN) Convention on the Rights of the Child provides, by Article 16:

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family or correspondence, nor to unlawful attacks on his or her honour and reputation and that the child has the right to the protection of the law against such interference or attacks.

14. Care and Protection Act, s 105, to which I referred, is another illustration of legal recognition of the view that a child is entitled to have details of a child's involvement in or association with care proceedings kept private. Similarly, the laws relating to adoption, which require that adoption proceedings be conducted in closed court and their details not disclosed, recognises the interests of a child in keeping private information concerning his or her status. Provisions in (CTH) Family Law Act 1975 which prohibit publication of details identifying parties to or children involved in those proceedings are a further example. So are provisions – not limited to, but which extend to children – which prevent the publication of information that will identify them as victims of certain crimes. Perhaps most tellingly in the context of children is the prohibition on publication of information that will identify them as having committed crimes while they are or were children.

15. The parental jurisdiction of the Court is only to be invoked in exceptional circumstances. One of those circumstances is where the remedy sought is one which the parents or those with the parental responsibility cannot themselves provide or consent to. Examples, that are entirely removed from the context of this case, include the sterilisation of an incapable child (as in Marion's case),[2] and the involuntary detention of a child for protective reasons (as in Re Thomas).

    2. Department of Health and Community Services (NT) v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15

16. This is such a case, because the parents or those with parental responsibility cannot themselves prevent publication of information that would identify the child's status. Their inability to do so justifies resort to the Court's wider powers.

17. Accordingly, I am satisfied, at least for the purposes of an interlocutory injunction, that the Court's parental jurisdiction extends to the relief sought in this case. It is then necessary to consider whether it is appropriate to grant that relief on an interlocutory basis.

Serious question to be tried?

18. The touchstone of the Court's parental jurisdiction is the best interests of the child. In this case, the Secretary's contention is that there is at least a significant risk that if the child's status, as one in the parental responsibility of the Minister or in foster care, becomes widely known, that will be both an invasion of the child's privacy, and risk attracting stigma to the child.

19. The evidence of the potential for stigmatisation was – at least initially – slight, but there is a reference in the August 2015 Report of the Senate's Community Affairs References Committee to the potential for stigma to be associated with out-of-home care status. Perhaps more helpfully, an article entitled, "Other children say you're not normal because you don't live with your parents" in Child and Family Social Work 2013, vol 18, at pages 25 to 34, by authors who include Julie Selwyn, who is highly regarded in this field, states (as summarised in the abstract):

Interviews with 80 children aged 8 to 18 years in informal kinship care and their carers showed that most children were well attached to their kin carers, but one-third had been taunted or bullied because they did not live with their parents. Many children tightly controlled who knew about this potentially stigmatising information.

20. It is to be observed that that article concerned children who are in kinship care, and it might reasonably be postulated that the situation would be accentuated when children were in out-of-home care other than with kin.

21. Another article entitled "Growing up in foster care" by Rest & Watson in Child Welfare, vol 63, No 4 at page 291, concerned children not in kinship care and is summarised in the abstract as including that from a small sample of adults who grew up in long-term foster carem their experience of impermanence did not impair their abilities to lead independent outwardly satisfactory lives "but left them at risk of an impaired self-image from the deeply felt stigma of foster care".

22. One of the perceived advantages of adoption, as this Court often hears, is that it diminishes the stigma which being a "state ward" might otherwise involve.

23. Accordingly, I think it is at least seriously arguable that knowledge that a person is in foster care or the parental responsibility of the Minister may result in stigmatisation.

24. However, this child's interests – as I see them at the moment on the limited evidence presently before the Court – are first and foremost in being found. If publication of information about the child’s status would assist in endeavours to find the child, that would be practically decisive of the application. Indeed, if it were likely to be of any assistance in the investigations and inquiries, then notwithstanding any potential for later stigma, the Court would not likely restrain disclosure of the child’s status. However, there is evidence before the Court that the police officer in charge of the investigation has stated that disclosure of the child’s legal status would add no value to the investigation and would not enhance the investigation. Save for the suggestion that it would provide transparency, the defendant was not, at this stage at least, able to identify how disclosure of the child's status would advance the investigation or assist in finding the child. Accordingly, there is nothing before the Court to indicate that the child's interest in being found would be served by disclosure of the relevant information.

25. A second consideration is the child's welfare, after being found. In those circumstances, this child will face many issues, most of them probably larger and more challenging than knowledge of legal status as a child in care. But for a child who will probably already be confronted by issues of considerable magnitude, public knowledge of the child’s status as one in care may be one additional issue for an already heavily burdened child, to cope with, which could be avoided by the injunction sought.

26. Subsidiary – though not irrelevant – considerations are the wishes and judgments of the child's parents and those with parental responsibility. The evidence before the Court is that the person with parental responsibility for the child – namely, the Minister – is of the view that it is not in the child's interests that this information be known. That is an important consideration, although the possible other reasons for the Minister to be opposed to disclosure have to be kept in mind, as I will later mention. The foster parents are both said to desire that the child's status not be publicly known. There is evidence before the Court that the child's birth mother has also indicated that she agrees that the child's status as a child in care, should not be revealed. Where the Court is presented with a practical unanimity of parental opinion of that kind, it is a not insignificant consideration. While, of course, that may all change by the final hearing, that is the current state of the evidence before the Court.

27. A further relevant consideration is the interests of the child's sibling, who is also in care with the same foster parents. Revelation of the child's status risks corresponding revelation of the sibling’s status, which for the reasons already mentioned may not be in her ultimate best interests.

28. For those reasons, as things stand, it seems to me that the best interests of the child do not support the disclosure of the child’s status as a child in care.

29. Nevertheless, while the best interests of the child are the dominant consideration, they are not the only one. An important countervailing consideration is the public interest.

30. In this case, the public interest is significant, not merely as a matter of curiosity, but because there is considerable public interest in the welfare of children in out-of-home care, and, as the defendant I think rightly argued, in the accountability of the Minister and the Department in respect of children in their care. It may be that questions could be asked, for example, as to how the child disappeared while in the Minister’s parental responsibility although there may be very good answers. Public scrutiny of the care system, if there has been a breakdown in it, is plainly a matter of public interest. Without wishing to suggest that it is the motive in this case, that also provides a reason for the Minister to embrace the view that disclosure is not in the child's interests, and it is to that possibility that I referred when saying that the Minister's judgment that disclosure was not in the child's interests needs to be seen in that light.

31. At a final hearing, there will have to be a very careful balancing of the interests of the child against the public interest. However, it is quite impossible at this stage to predict what the outcome of that balancing exercise would be. It certainly cannot be said at this stage that the public interest in disclosure clearly outweighs the child’s interest in suppression.

32. A further consideration is the utility of making an order, particularly if the relevant information is already in the public domain. The evidence adduced by the defendant shows that, to some limited extent, the information has been published online, typically in comments on articles or in online discussions. But it seems to have received very limited distribution, and there is evidence that major media outlets have responded to requests not to publish it.

20. I do not think it is right to say, as the defendant suggested, that she is being singled out in this respect. So far as the evidence goes, there has been a consistent endeavour on the part of the Secretary to prevent publication or disclosure of the child's status. And while there might have been some limited online distribution of it, what the defendant proposes to do risks much wider disclosure than has so far occurred.

21. To summarise: at this stage, it seems to me that the evidence suggests that the best interests of the child would not be served by disclosure of this information. Against that, there is a public interest in disclosure, but it is not possible to say at this stage that that public interest is so great that it outweighs the best interests of the child. Nor am I satisfied that restricting further publication would be without utility, and that is because of the quite limited distribution that appears to have occurred to this point. Accordingly, I am satisfied that there is a serious question to be tried. That of course does not mean that ultimately the Secretary will necessarily, or even probably, succeed.

Balance of convenience

35. As to the balance of convenience, however, the issue is quite clear.

36. The interlocutory injunction will be for a limited period, of a couple of months, until an early final hearing. There is no apparent urgency associated with disclosure of the relevant information, and the injunction does not prevent the defendant and her associates from, if they wish, continuing to promote a coronial inquest or any other steps they might wish to take in aid of the child's location or any inquiry into the disappearance.

37. On the other hand, if an interlocutory injunction were not granted and publication took place, the position would be rendered immediately irretrievable, and frustrate the purpose of a final hearing.

Conclusion

38. For those reasons, the injunction should be continued on an interlocutory basis until the hearing.

39. The Court therefore orders that:

1. Until the hearing or further order, the defendants be restrained from, by themselves their servants or agents, further publishing, whether in writing or by internet or any other electronic means, information conveying that the child:

1. has been placed in foster care; and/or

2. is under the parental responsibility of the Minister for Family and Community Services; and/or

3. (c) is a “ward of the State”;

4. or to similar effect.

2. Until the hearing or further order, the defendants forthwith remove from the Walking Warriors 4 Missing Children Facebook page, any posts which convey that the child:

1. has been placed in foster care; and/or

2. is under the parental responsibility of the Minister for Family and Community Services; and/or

3. is a “ward of the State”;

4. or to similar effect.

3. The plaintiff serve an further evidence upon which it is proposed to rely at the final hearing by 28 September 2016.

4. The defendant serve any further evidence upon which she proposes to rely at the final hearing by 19 October 2016.

5. The proceedings be set down for hearing on 15 November 2016 before me with a one day estimate.

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Endnotes

Decision last updated: 28 August 2017