Children's Court New South Wales Medium Neutral Citation: Re Oliver [2021] NSWChC 1 Hearing dates: 4 December 2021 Decision date: 22 January 2021 Jurisdiction: Care and protection Before: Children's Magistrate D Williams Decision: The Court appoints a guardian ad litem for the child under s 98(2A) Catchwords: CHILDREN — Care proceedings — Party — Representation — Guardian ad litem Legislation Cited: Children and Young Persons (Care and Protection) Act 1988 Uniform Civil Procedure Rules 2005 Children and Young Persons (Care and Protection) Amendment Bill 2006 Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill 2006 Cases Cited: GR v Department of Communities and Justice and Ors [2020] NSWSC 1622 Re June (No. 2) NSWSC 1111 SL v Secretary of the Department of Family and Community Services [2016] NSWCA 124 News Limited and Ors v Australian Rugby Football League Limited and Ors (1996) 139 ALR 193 Category: Principal judgment Parties: The Secretary The Mother The Father The Child Representation: Counsel: Mr Anderson for the Department of Communities and Justice, appeared via AVL Solicitors: Ms Neligan for the Child, appeared via telephone link Ms Ferrier for the Mother, appeared via telephone link Ms Vardanega for the Father, appeared via telephone link File Number(s): 2020/00342888 Publication restriction: Pseudonyms have been used in order to anonymise the children and parties JUDGMENT 1. Section 98(2A) of the Children and Young Persons (Care and Protection) Act 1988, (the Care Act), is in these terms: "(2A) If the Children's Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children's Court is to appoint a guardian ad litem for the person under s 100 or s 101 (as the case may require)." 1. In GR v Department of Communities and Justice and Ors [2020] NSWSC 1622, Sackar J held that s 98(2A) creates a mandatory obligation upon the Court such that in all cases where the Court is of the opinion that a party is incapable of giving proper instructions to a legal representative, a guardian ad litem (GAL) must be appointed. 2. In GR, his Honour was sitting on an appeal from the President of the Children's Court at first instance, and accordingly, the extent to which the decision creates a precedent which is binding on this Court at first instance is not straightforward. However, nothing turns on that consideration, since, in my respectful opinion, his Honour's decision is undoubtedly correct. 3. These proceedings relate to Oliver, who is less than two months old. Even putting aside the statutory presumption in s 99C(1), it is clear that a child of two months is incapable of giving proper instructions to a legal representative. Thus, pursuant to the mandatory requirement in s 98(2A), the Court is obliged to appoint a guardian ad litem for him, if he is a party to the proceedings. Such an obligation is, on its face, independent of any application (or the absence of any application) made by any other party or participant. 4. A question arises, then, as to whether Oliver is a party to these proceedings. 5. The proceedings were first before the Court on 4 December 2020, and on that date Mr Anderson, who appears on behalf of the Secretary, provided the Court with written submissions contending that Oliver is not a party, and that therefore the mandatory obligation to appoint a guardian ad litem, contained in s 98(2A) does not operate. Ms Neligan, the independent legal representative appointed for Oliver, supported the Secretary's position, without adding any further submissions. Since the parents had had no notice of either the issue or the submissions, I did not progress the consideration further on that occasion, instead making interim and procedural orders, and adjourning the matter to allow the parents to consider the Secretary's submissions. 6. Today is the second listing of the matter, and both parents respond to the Secretary's written submissions by indicating that they support the Secretary's position. 7. It is thus clear that there is no application before me to appoint a GAL for Oliver and, indeed, the only legal representatives who seek to be heard on the point urge me not to do so. 8. It is well settled that in this jurisdiction consent of the parties is not a sufficient reason in and of itself to make, or refrain from making, orders, since the paramount concern is the safety, welfare and wellbeing of the child. However, the fact that the parties consent to a position with which, for the reasons I will shortly explain, I disagree, puts the Court in a difficult position, since I have not had the benefit of submissions from a contradictor to the Secretary's position. 9. This, of course, does not absolve the Court of its responsibility to make a proper determination, but it certainly makes the task harder, and increases the potential for error. That such a situation may arise is a function of the unique nature of this jurisdiction. 10. The unique nature of this jurisdiction also means that ascertaining exactly who the parties are in a given case is not immediately straightforward. The only position without complication is that the applicant who files the initiating application is plainly a party. That party is usually, but not always, the Secretary. Beyond that, although the Care Act makes reference in a number of provisions, (including s 98(2A)) to the term "parties", there is no definition of that term, and, unlike in both the criminal and civil jurisdictions, there are no procedures, such as the charging of a defendant or the summoning of a respondent, that creates party status automatically. Rather, in the ordinary case in this jurisdiction, the Secretary petitions the Court for certain orders, and certain other participants have the right to be, or otherwise may be, involved. 11. The term "party" is, however, used in s 98(2A), and because it is not defined, its use raises a question of statutory interpretation. 12. In its written submissions the Secretary states, at paragraph 6: "The active parties to the proceedings are the Secretary and the parents, if they choose to engage. The child [Oliver] is very young and, although entitled to competent representation to advocate for his interests, is not a party to the proceedings and unlikely, due to his age, to add anything to the proceedings". 1. This submission is correct in‑so‑far as it describes the practical exigencies of the conduct of care proceedings. Plainly, a child of two months cannot add anything to the proceedings directly. However, the task of statutory interpretation which this Court must undertake is entirely independent of a consideration of practicalities. The mere fact that Oliver, in a practical sense, cannot add anything to the proceedings does not impact one way or another on the proper construction of the word "party" in s 98(2A). The proper construction of that term applies in all matters before the Court, including matters in which, for example, the child or young person is old enough, and of sufficient capacity, to meaningfully participate in a practical sense. 2. What, then, is meant by the term "party" in s 98(2A)? In my view the starting point is s 98(1), which is in these terms: "In any proceedings with respect to a child or a young person 1. the child or young person and each person having parental responsibility for the child or young person, and 2. the Secretary, and 3. the Minister, may appear in person or be legally represented or, by leave of the Children's Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings". 1. Although s 98(1) does not use the word "party", it clearly vests rights of standing, appearance and participation in certain entities, namely the Secretary, the Minister, any person having parental responsibility, and the subject child or young person. The vested rights are wide ranging and are consistent with the rights enjoyed by those described as parties in other curial proceedings. 2. Three things are immediately apparent regarding s 98(1). The first is that s 98(1) does not purport to fetter the appearance and participation rights of any of the participants listed, other than to say that leave is required to appear by an agent. It does not impose limitations, for example, that would diminish the entitlements of any of the listed participants below those normally accorded to a party in other types of curial proceedings. 3. The second is that s 98(1) does not require any application, by joinder or otherwise, or any grant of leave or exercise of discretion by the Court, for those entitlements to vest. 4. Those two factors, in my view, point strongly, if not inevitably, to the conclusion that s 98(1) should properly be characterised as creating a non-exhaustive list of parties to the proceedings. 5. The third thing which is immediately apparent is, crucially, that s 98(1) does not identify or create any legislative difference between the appearance and participation rights of any of the participants listed. That is, each child or young person is afforded exactly the same status as the Minister, the Secretary, and any person having parental responsibility. The provision makes no reference to the ability or capacity of the child, young person or any other participant to meaningfully be involved in a practical sense. The rights afforded by s 98(1) are entirely independent of questions surrounding a participant's capacity to exercise them. Similarly, s 98(1) does not create any legislative difference between the status of a child or young person who does have the capacity to instruct a legal representative, and one who does not. 6. In my view, s 98(1) makes clear that the subject child or young person in care proceedings has exactly the same rights of standing, appearance and participation as the Secretary and the Minister. It is inconceivable that the Secretary would concede that it is not a party to care proceedings, even ones it did not initiate (e.g., s 90 applications). There being no legislative difference between the status of the Secretary and the status of the child or young person, it is, in my view, similarly inconceivable that the child or young person should not be characterised as a "party", as that term is used in the Care Act. 7. Section 98(3) provides a mechanism by which persons other than those listed in s 98(1) may be afforded the same status and entitlements as the principal participants set out in s 98(1). Section 98(3) is in these terms: "(3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children's Court, has a genuine concern for the safety, welfare and well-being of the child or may, by leave of the Children's Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings--". 1. Although past practice is far from determinative of questions of statutory interpretation, nevertheless it is instructive to note that applications under s 98(3) are generally referred to as "joinder applications", and routinely seek that persons be joined "as a party". 2. By contrast, s 87 creates a right to be heard in certain persons who are not, and do not thereby, become parties. It is, relevantly, in these terms: 87(1): "The Children's Court must not make an order that has a significant impact on a person who is not a party to proceedings before the Children's Court unless the person has been given an opportunity to be heard on the matter of significant impact". (3) "The opportunity to be heard afforded by this section does not give the person who is heard the status or rights of a party to the proceedings". 1. The existence of s 87(1) clearly creates a distinction in the standing positions of two different classes of participants those whose rights derive from s 98, and those whose rights derive from s 87. Those whose rights derive from s 87 are not thereby given party status. It is reasonable to conclude that, by contradistinction, those whose rights derive from s 98 are given party status. 2. Plainly, the inclusion of the child or young person in s 98(1) makes it clear that it is not necessary for a child or young person to avail himself or herself of the entitlements set out in either s 98(3) or s 87(1). In the case of an older teenaged young person, for example, it has never been necessary for that young person to seek to be joined; he or she is directly represented and appears as a right. Nothing in s 98(1) renders the legal position any different in respect of a child under the age of 12. 3. It is clear that the child or young person's status and entitlements before the Court are primary, and, as noted above, are on equal footing with those of the Secretary, the Minister, and those with parental responsibility. 4. Under s 104, the Court has the power to exclude a child or young person from being present during the hearing of proceedings in certain circumstances, and it may be argued that that power is contrary to a conclusion that the child or young person is a party. However, s 104A gives the Court a similar power in respect of any other person, including, presumably, a person with parental responsibility for the child or young person. Thus s 104 does not, in fact, create a legislative difference between the position of the child or young person and the position of any other participant who is a natural person. 5. The fact that s 98(1) grants primary and undifferentiated appearance entitlements as of right to each of the child, the Secretary, the Minister, and those with parental responsibility, points strongly, in my view, to the conclusion that each of those is properly characterised as a party as of right. This position, which arises naturally from the words and structure of s 98(1), is the one reached by McDougall J in Re June (No. 2) NSWSC 1111, who (at paragraph 186) described those participants listed in s 98(1) precisely in those terms, that is, as "parties as of right". 6. Although the question of whether a child or young person is a party has not been conclusively determined in any decision of which I am aware, McDougall J's statement in Re June (No. 2) is not the only statement touching upon the question. 7. Before considering the other authorities, though, it is important to note that the position of the superior courts on appeal is further complicated by the operation of Rule 50.18(b) of the Uniform Civil Procedure Rules 2005, which requires that a child over the age of ten be named as a defendant, and hence a party, in any appeal in which it is not the plaintiff. Having said that, it has been observed that there is ambivalence as to whether or not a child or young person is a party; SL v Secretary of the Department of Family and Community Services [2016] NSWCA 124 at 46. Unfortunately, although in that decision Basten J made the observation that, "The time for re-evaluation of the practices and procedures with respect to both the role and representation of children of no capacity would appear to be long overdue", no such re-evaluation has manifested itself in the Care Act. 8. In SL, after noting the undoubted right of a child to appear and be legally represented, the Court said (para 49): "Section 99 of the Care and Protection Act confers power on the Court to appoint a legal representative to act for a child if satisfied that the child 'needs to be represented in any proceedings before it'. The implication of that provision is that the child is not a necessary party to the proceedings, although he or she may be the subject of the proceedings. Where a legal representative is appointed, and there is no guardian ad litem (because the child is capable of giving instructions) the lawyer is known as the 'direct legal representative'; however, the legal representative for a child who is not capable of giving proper instructions, or for whom a guardian ad litem has been appointed, is described as the 'independent legal representative'. The apparent inconsistency between the obligation of the Court to appoint a guardian ad litem for a child who is not capable of giving proper instructions and the possibility envisaged by s 99A(2) that that may not have happened may be explained by the fact that the child may not be a party to the proceedings, although, in that case, it is difficult to see why the Court would appoint a legal representative to act for the child". 1. With the utmost respect to his Honour, whilst it is true that one implication of s 99 may be that which his Honour described, there are alternative conclusions which can be drawn from s 99. One is that s 99 simply performs the same function in relation to the child or young person as s 98(2) performs in respect of any other party. Section 98(2) is in these terms: "However, if the Children's Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented". 1. In my view, there is no compelling logic by which s 99 can only yield the conclusion that a child or a young person is not automatically a party to the proceedings, and I do not understand his Honour to have suggested that that was so. It is but one factor in the overall exercise of statutory interpretation, and one which is far from determinative. 2. In GR Sackar J did not purport to determine the question whether a child is a party as of right, but at para 69 he referred to the general principles set out in News Limited and Ors v Australian Rugby Football League Limited and Ors (1996) 139 ALR 193 that: "The correct test to apply in determining whether a person ought to be joined as a party to proceedings is whether their rights against, or liabilities to, any party in the action in respect of the subject matter of the action will be directly affected by any order which may be made in the action". 1. Sackar J then went on to say (para 74): "I see no reason why the usual considerations which focus on the impact of curial proceedings on the legal rights of parties should not apply to the determination of proper parties in Children's Court proceedings, in relation to the child or young person, their parents, the Secretary and the Minister, for example..." 1. It seems to me that references to joining of parties in both GR and SL are beside the point, given the existence of s 98(1) and its contrast with ss 98(3) and 87(3), to which I have referred earlier. That, of course, is no criticism of their Honours in GR and SL, who were considering different questions to the one presently before me. 2. In GR (at para 84) his Honour referred to an extract of the Second Reading Speech for the Children and Young Persons (Care and Protection) Miscellaneous Amendments Bill 2006. It now appears that his Honour was incorrectly referred to that speech, since s 98(2A) was introduced not by that Bill, but earlier in 2006 by the Children and Young Persons (Care and Protection) Amendment Bill 2006. In the Second Reading Speech of that Bill, the following was stated: "To assist in preventing delays in court proceedings the Bill requires the Court to consider the appointment of a guardian ad litem at a much earlier stage of the proceedings than is currently the case. The proposal seeks for the Court to turn its mind to the question of competency at the same time as the Court is considering a person's capacity to adequately represent himself or herself, and I refer to s 98 of the Act". 1. Although it does not touch directly on the question before the Court, in my view that statement is more consistent with the proposition that a child who lacks capacity should have a GAL appointed, than with the proposition that a child who lacks capacity should not be a party to the proceedings. 2. On a similar note, Sackar J in GR was confronted with the practical application of a mandatory interpretation of s 98(2A), and said this at para 61: "The first and second defendants submit that s 98(2A) should not be construed as mandatory because that would mean that in every matter where a child or young person was a party and an ILR was appointed because the child or young person was incapable of giving proper instructions, a guardian ad litem would also have to be appointed. However that is, in my view, exactly what the Act contemplates". (Emphasis added.) 1. In its written submissions, (at para 17), the Secretary has helpfully set out the positions prevailing in other States and Territories. In each of Queensland, the ACT, South Australia and the Northern Territory, it appears that the Care legislation specifically provides that a child is a party to care proceedings to which it is subject. The care systems in those States and Territories are not fundamentally different from the care system in New South Wales, and it seems to me appropriate to take their explicit positions into consideration in determining what the New South Wales legislature meant by the term "party" in s 98(2A) of the New South Wales Act. 2. In my view the correct interpretation of the word "party" in s 98(2A) is clear. It includes the child or young person the subject of the proceedings. So much is made plain by s 98(1) which, in my view, lists those participants who are properly characterised as parties to care proceedings as a right. That list includes the subject child or young person. 3. I am acutely aware that there are far-reaching practical and funding implications to the conclusion I have reached since, by the operation of s 98(2A), in every case where the Court is of the opinion that the child or young person is incapable of giving proper instructions to a legal representative, it must appoint a GAL. In practical terms, virtually every care proceeding involving a child under 12 will thus need to be adjourned and a GAL appointed. As I understand it, the number of GAL appointments required to be made will quickly outstrip the available practical capacity for those appointments to be filled. However, questions of statutory interpretation cannot and do not turn on such logistical considerations. 4. Oliver is plainly incapable of giving proper instructions to a legal representative. Accordingly the Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative. Oliver is that party. UNDER S 98(2A) I MUST APPOINT A GUARDIAN AD LITEM FOR HIM AND I DO SO. I WILL ADJOURN THE PROCEEDINGS FOR THAT TO OCCUR. 5. By way of assistance to the Secretary, I see no reason why the same view should not apply in all care proceedings before this Court where the child or young person is incapable of giving proper instructions to a legal representative. That will include all matters involving a child under 12 unless the statutory presumption in s 99B is rebutted. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2021