New South Wales Supreme Court CITATION : Re Tyrone [2002] NSWSC 619 FILE NUMBER(S) : SC 11428/02 HEARING DATE(S) : 27 June 2002 28 June 2002 JUDGMENT DATE : 5 July 2002 PARTIES : Re Tyrone JUDGMENT OF : Sully J at 1 LOWER COURT Children's Court of NSW JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : P. I. Lakatos - Plaintiffs COUNSEL : P. Braine - 2nd Defendant A. Healey - 4th Defendant SOLICITORS : - Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED : Interpretation Act 1987 (NSW) Children's Court Act 1987 Children Act 1989 (UK) Ex parte Power; re Devereux (1957) 57 SR 503 (NSW) CASES CITED : Kable v Director of Public Prosectuions (NSW) (1996) 189 CLR 51 Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489 DECISION : Relief refused in paras 2 and 3 of the Summons. Orders in accordance with paras 1 and 4 of the Summons. Plaintiffs to pay the costs of the 2nd and 4th defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION common law division SULLY J Friday 5 July 2002 11428/02 – RE TYRONE JUDGMENT 1 HIS HONOUR: These proceedings concern the continuing care of a brain damaged boy aged about three and a half years. He has been given for the purposes of the proceedings the pseudonym: "Tyrone". The proceedings concern, also, the construction of various of the provisions of the Children and Young Persons (Care and Protection) Act 1998 ("the Act"). 2 By a summons filed on 22 May 2002 the Minister for Community Services as first plaintiff and the Director-General, Department of Community Services, as second plaintiff claim the following relief. "1. An order that these proceedings be styled "RE: TYRONE". 2. An order that the determination of the first defendant, made at Sydney on 16 May 2002 in the proceedings concerning the child ….(Tyrone) … (DOB 15/1/99), be quashed until further order of the First Defendant. 3. The matter be remitted to the First Defendant for orders to be made in accordance with the law. 4. An order that no information be published except for the purposes of the proper conduct of these proceedings and the execution of the orders made therein, that would allow the child to be identified as a subject of these proceedings. 5. Any other order this Honourable Court deems fit." 3 Four defendants are cited in the summons. The first defendant is the Children's Court of New South Wales. The State Crown Solicitor has filed on behalf of the first defendant an appearance submitting to the orders of the Court, save as to costs. The second defendant is Tyrone's natural mother. She has appeared by counsel to contest the claims now made by the plaintiffs. The third defendant is Fox Welfare Services Pty Limited, a private sector provider of, relevantly, various child care services. This defendant, also, has filed an appearance submitting to the orders of the Court save as to costs. The fourth defendant is Kathryn Renshall. She fulfils in the present proceedings the role of a separate legal representative of Tyrone. That role is established by s 99 of the Act, and carries various defined statutory responsibilities, the detail of which need not now be examined. The fourth defendant has appeared by counsel to contest the present claims of the plaintiffs. 4 Prior to 8 August 2001 Tyrone was subject to a wardship order. The details of the order and of the proceedings giving rise to it need not now be canvassed. 5 On 8 August 2001 the second plaintiff brought in the Children's Court an application pursuant to s 61 of the Act. Section 61 provides: "61 Applications for care orders (1) A care order may be made only on the application of the Director-General, except as provided by this Chapter. (2) A care application must specify the particular care order sought and the grounds on which it is sought. (3) The order sought may be varied, but only with the leave of the Children's Court." 6 The provisions of s 61 are affected by several statutory definitions that are contained in s 60 of the Act. Those definitions are: " 60 Definitions In this Act: care application means an application for a care order. care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86. care proceedings means proceedings under this Chapter." 7 On 8 August 2001 a Children's Court magistrate made an order placing Tyrone in the interim parental responsibility of the first plaintiff. The statutory foundation of this order is the following group of provisions in the Act. "69 Interim care orders (1) The Children's Court may make interim care orders in relation to a child or young person after a care application is made and before the application is finally determined. (2) The Director-General, in seeking an interim care order, has the onus of satisfying the Children's Court that it is not in the best interests of the safety, welfare and well-being of the child or young person that he or she should remain with his or her parents or other persons having parental responsibility. Note . Section 49 makes provision for the care of children and young persons pending care proceedings. 70 Other interim orders The Children's Court may make such other care orders as it considers appropriate for the safety, welfare and well-being of a child or young person in proceedings before it pending the conclusion of the proceedings. 70A Consideration of necessity for interim care order An interim care order should not be made unless the Children's Court has satisfied itself that the making of the order is necessary, in the interests of the child or young person, and is preferable to the making of a final order or an order dismissing the proceedings. 79 Order allocating parental responsibility (1) If the Children's Court finds that a child or young person is in need of care and protection, it may: (a) make an order allocating the parental responsibility for the child or young person, or specific aspects of parental responsibility: (i) to one parent to the exclusion of the other parent, or (ii) to one or both parents and to the Minister or another person jointly, or (iii) to another suitable person, or (b) make an order placing the child or young person under the parental responsibility of the Minister." 8 That interim order having been made, the learned magistrate embarked forthwith upon a final hearing of the s 61 application. That hearing was both lengthy and lively. It came to a head on 30 April 2002. 9 On that latter day the learned magistrate did a number of things. 10 First, his Worship made a finding pursuant to s 71 of the Act. The relevant provisions of s 71 are: "71 Grounds for care orders (1) The Children's Court may make a care order in relation to a child or young person if it satisfied that the child or young person is in need of care and protection for any of the following reasons: ... (d) subject to subsection (2), the child's or young person's basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or here parents. ... (2) The Children's Court cannot conclude that the basic needs of a child or young person are likely not to be met only because of: (a) a parent's disability, or. (b) poverty." 11 Secondly, his Worship continued until further order the interim order made on 8 August 2001. 12 Thirdly, his Worship dealt with the difficult question of Tyrone's long-term care. His Worship concluded that it was in Tyrone's best interests that he be restored by a properly phased and monitored process to the full parental care and responsibility of the second defendant. His Worship concluded further that such a process would be best facilitated by the use of a private welfare agency; and the third defendant, officers of which had been involved previously with particular aspects of Tyrone's case, was proposed to his Worship as being suitable for appointment by the Children's Court as such a facilitator. 13 Fourthly, his Worship adjourned to 16 May 2002 the further hearing and determination of the original s 61 application. This was done so that the third defendant might have a proper opportunity of being heard as to its readiness and ability to undertake the very sensitive and important role that was envisaged for it. 14 On 16 May 2002 the Children's Court considered the suitability of the third defendant for appointment as facilitator of Tyrone's eventual restoration to the parental care and responsibility of the second defendant. All parties to the s 61 application agreed that Tyrone's best interests would be served by his restoration, as proposed, to the care and responsibility of the second defendant. It emerged, however, during the course of this particular hearing, that the Department of Community Services was implacably opposed to the facilitation through the services of the third defendant of the proposed restoration. The departmental position, put simply, was that it had all the necessary expertise available to it without the need for any recourse to a private agency. 15 The learned magistrate indicated that he would not be moved from his previously intimated position that in the circumstances of Tyrone's particular case the best method of moving forward to the agreed goal of eventual full restoration was that of employing the services of the third defendant. To that end, his Worship directed the parties to consult about the appropriate form of orders and to bring in short minutes. 16 In due course a form of minute was presented to his Worship. The departmental representative informed the Court that the department would not consent to any order that entailed the involvement of the third defendant. The form of the minute as originally submitted was: MINUTE OF ORDER OF 16/4/02 1. The Court orders pursuant to s74(1) of the Children & Young persons (Care & Protection) Act that Fox Welfare Services provide support services to the child...[Tyrone]...for a period of 3 months. 2. Pursuant to s74(3) the Director General is directed to provide support to Fox Welfare Services to facilitate Order 1 with such support to include (a) case work liaison (b) funding of Fox Welfare Services on terms as may be agreed between DOCS and Fox Welfare Services, but failing such agreement, as directed by the Court. 3. The services to be provided by Fox Welfare Services pursuant to Order 1 are of the nature of restoration and family support and may include: (a) interviewing the foster carers & the mother (b) supervising contact between...[Tyrone]...and his mother (c) liaison with relevant agencies including DOCS (d) file review & supervision of contact worker (e) provision of reports to DOCS and court (f) attendance at court to report as to progress of any restoration 4. The court notes the consent of Fox Welfare Services through its director Julie Fox to the making of an order pursuant to s74 in terms as described above. 5. To give effect to these orders the court grants access to Fox Welfare Services through the proposed case supervisor to peruse the court file in relation to...[Tyrone] 6 Fox Welfare Services are directed to prepare a progress report by 24/6/02 for the court to assess what further orders may be appropriate 7. The matter is adjourned to 27/6/2002." 17 Upon the submission of this minute the following interchange took place. "SAMRA: Your Worship, I am filling in for Mr Malos. BENCH: Thanks, doctor, Mr Malos said that that would be the case. I have received a copy of a document called minutes of order which was prepared by Mr Braine-- BRAINE: Your Worship, that's not a consent document. BENCH: I know that, which represents the orders which Mr Braine asks me to make. Ms Renshaw, are they orders that you ask me to make? RENSHAW: Yes. I actually had some consultation with Mr Braine in relation to that. BENCH: I understand, doctor, that they are not orders which the Department seeks that I make. SAMRA: No, the Department opposes that, your Worship. BENCH: Yes, but is there anything in the form of the orders as opposed to the substance to which you'd want to take exception? I raise that because although Mr Malos had an opportunity and indeed addressed me at length on the substance of the orders, I understand he has not actually seen this particular document. SAMRA: I note the reference to s 74(3). That, I submit, is a misconstrual of the section. S 74 provides for organisations to be directed to do certain things after consultation with those organisations, subs (3) places the Director General in the same position as other organisations rather than, I'd submit, by saying that the Director General may be required to provide support pursuant to an order made under this section. That places the Director General in the same position as any other organisation under s 74(1). It is not, I'd submit, something that directs the Director General to provide funding or other support for agencies which the Department doesn't agree to. BENCH: Thanks, doctor, that's very well taken, with respect. Mr Braine, my understanding is that I am being asked to make an order that Fox Welfare Services provide certain support services and that's an order not under s 74(3) but simply under s 74. The reference to s 74(3) in the minute is, I gather, to direct the Director General to cooperate in that exercise, is that right? BRAINE: Yes, that's correct. I can indicate in addition, your Worship, that Ms Fox indicated her wish that the order clarify the issue of the funding of her service during the course of the order. BENCH: I must say I am not addressed by anyone other than Dr Samra in relation to this but it seems to me that the requirement of the Department to cooperate in the order, and for that matter to fund the order, arises out of the child being in the parental responsibility of the Minister. If for instance a child under the parental responsibility suddenly needs to have a tooth out, it's implied in the parental responsibility that the Minister attend to that and fund it, is it not? BRAINE: The need for that order of course, your Worship, is avoided if the Department gives an indication that they will fund that service-- BENCH: Well, they haven't given that. I am going to amend the minutes by deleting reference to subs (3) in para 2. I think it's arguable that the requirement that the Department fund the exercise and the requirement that the Department cooperate in the restoration programme arises out of the fact that I am making an order under s 74 in respect of a child for whom otherwise the Minister has parental responsibility. Because it may well be, with respect as Dr Samra suggests, that the point of subs (3) is not to require the Director General to support or fund orders made under s 74, but rather to bring the Director General into the field as someone who can be required to provide services just as outsiders can be required to provide services. I don't want to spend the time determining that particular argument today and because I am comfortable that the order that I am about to make will require the Director General to cooperate in the enterprise I don't see any need to clarify the issue that Dr Samra raises today. SAMRA: Your Worship, there is another issue again and that's in terms of form. The child is in the parental responsibility of the Minister, not of the Director General, and therefore any order to the Director General does not cover the situation of this child in any case. BENCH: I wonder if that's right. SAMRA: They are two separate persons. BENCH: Yes, that's right, so maybe the Director General is being asked not as the person with responsibility but as another person to provide yet another service. Again I don't think I have to determine that issue today but I am grateful for you having raised it." ( Note : Dr Samra represented the department, Mr Braine represented the natural mother, and Miss Renshall was the special representative.) 18 The learned magistrate then proceeded to give a discursive judgment culminating in the making, according to the official transcript of the hearing, of orders 1, 2 and 7 of the minute as amended. 19 It will be necessary to return presently to some of the detail of that judgment, but it is convenient first to note the following matters. 20 First, on 16 May 2002 a formal sealed order of the Children's Court was taken out. It records that: "ORDER DETAILS Date of order: 16/5/02 Place of order: ST JAMES CHILDREN'S COURT The Children's Court orders as follows: (Distinguish between final & Interim Orders) ** INTERIM ORDERS THAT ORDERS BE MADE IN TERMS OF THE DOCUMENT TITLED "MINUTE OF ORDER" DATED 16/5/02 FILED HEREIN AND ATTACHED HERETO" 21 The full text of the amended minute is attached. It is obvious that the orders made according to the official transcript are not consistent with the orders notified in the formal sealed Court order. It happens, fortunately, that the present summons does not stand or fall on this consideration; but it is obviously important that the inconsistency be rectified in some appropriate way. 22 Secondly, it is expedient to note the actual provisions of s 74 of the Act. They are: " 74 Order for provision of support services. (1) The Children's Court may make an order directing a person or organisation named in the order to provide support for that child or young person for such period (not exceeding 12 months) as is specified in the order. (2) The Children's Court must not make an order under this section unless: (a) it gives notice of its intention to consider making the order to the person or organisation who would be required to provide support pursuant to such an order, and (b) the person or organisation is given an opportunity to appear and be heard by the Children's Court before the Children's Court makes such an order, and (c) the person or organisation consents to the making of the order, and (d) the view of the child or young person in relation to the proposed order have been taken into account. (3) The Director-General may be required to provide support pursuant to an order made under this section." 23 The judgment delivered on 16 May deals with three particular submissions that had been put for the second plaintiff in opposition to the proposed involvement at departmental expense of the third defendant. One only of those submissions is now relevant. Of it the learned magistrate said: "The second submission which Mr Malos has made against my making the order under s 74 is the submission that s 74 applies only to the provision of services which the Department of Community Services doesn't offer, in other words Mr Malos submits that where the Department provides particular services then it has a monopoly on those services as far as s 74 is concerned. I don't think that that is the fact. Certainly there is nothing in s 74 which would indicate that the Department has a monopoly on such services as it offers. I think that that's not the case and I rely for some support in that regard to a decision of Children's Magistrate Crawford in re MB and BB which was reported in Case Law News Number 10 and was given on 1 February 2002 in which his worship made an order under s 74 for the provision by the Department of Community Services of a psychiatrist for a child and an order that the Department not only provide that psychiatric help but fund it. And I think that it is not clear, to my satisfaction in any event, that s 74 does not apply only in those areas that the Department does not offer services." 24 After the learned magistrate had delivered judgment, the following interchange occurred: "SAMRA: Before the matter is finalised I'd ask your Worship to give a further reasoning in respect of your indication that the Department could be considered bound to provide the services indicated in this order given the fact that as you indicated you are not relying on subs (3) of 74. BENCH: No, I didn't say I wasn't relying on it, I said I wasn't going to determine that issue. BRAINE: I thought your Worship earlier foreshadowed the deletion pursuant to s 74(3) in order to-- BENCH: I just deleted the word (3). I haven't got time to determine that issue right now, I am confident that there is power to make the order I am making and I am making it. Otherwise the interim orders are continued pending further order and the application is stood over to 27 June. Could we have a transcript of today please." 25 It is submitted for the first and second plaintiffs that no other section or sections of the Act, apart from s 74, could be construed correctly so as to support an order that there be departmental funding of services ordered to be provided by a non-departmental agency such as the third defendant. It is submitted that ss 15, 16(1), 22, 85, and 161 are the only sections, apart from s 74, that have any apparent potential to support such a funding order; and that each of those sections, when construed correctly, does not in fact give such support to such a funding order. 26 I agree that none of the enumerated sections gives power to the Children's Court to make a funding order of the kind made in Tyrone's case. I agree, also, with the submission that any such power, if it exists at all under the Act, must derive from s 74. 27 The submissions of the present plaintiffs in connection with 74 are put as follows in their written submissions: "26. It is submitted that if s.74 is the source of power to make an order against the Director General then the requirements of s.74 need to be fulfilled. Absent this, the order is not properly made. In particular, it is submitted that the consent of the Department is required for an order for support [to be provided by the Department], to be made under s.74(1). The requirement for consent is to be found in s.74(2)(c). 27. It is submitted that as a matter of construction of section 74, there is nothing that indicates that the Director General is to be treated in any different manner than any other person or organisation. It is the case that in proceedings before the Children's Court, the Department is invariably a party and therefore the requirements of notice and the opportunity to appear and be heard pursuant to s.74(2)(a) and (b) will not normally be an issue. They are necessary to ensure that the requirements of natural justice to a person affected by a court order, are fulfilled. 28. However, s.74(3) in making reference to the Director General being required to provide support pursuant to an order made under this section , equates the position of the Director General with any other person or organisation. It is submitted that an order under s.74 must comply with the requirements of the entire provision. Part of s.74 is of course, subsection (2) which inter alia, requires consent. Arguably an order is not made pursuant to the section, if it does not comply with the pre-conditions in the section itself. 29. If the Director General could be compelled to provide support by a means outside the ambit of s.74, the presence in s.74(3) to the Director General would be otiose and there would have been no need for the specific reference in the subsection." 28 In my opinion s 74(3) is, as it stands, ambiguous. It is capable of being read as conveying either that the Director-General is to be understood as equating for the purposes of subs (1) and (2) to "a person or organisation," or that the Director-General may be ordered to provide financial or other ancillary support for a child, that support being linked to the provision of some other particular form of support provided by some other "person or organisation" pursuant to a Children's Court order. 29 In order to resolve such an ambiguity in a statutory provision, recourse may be had to appropriate materials extrinsic to the statute itself: See s 34 of the Interpretation Act 1987 (NSW). In the present particular case there are, however, no helpful extrinsic materials. 30 That being so, it is necessary to apply s 33 of the Interpretation Act, and to prefer "a construction that would promote the purpose or object underlying" the particular statute. 31 Part I of Chapter 2 of the Act sets out in great detail the objects and principles, so described, of the Act. The objects and principles as thus defined "are intended to give guidance and direction in the administration of this Act. They do not create or confer on any person any right or entitlement enforceable at law": see s 7 32 I take s 7 not to have, and not to be intended to have, the effect of cutting down the requirement of s 33 of the Interpretation Act. I proceed, therefore, upon the basis that the Chapter 2 objects and principles define in connection with the construction of the Act, and in particular s 74 thereof, the underlying object or purpose that is to be promoted by any such construction. 33 The provisions now relevant of Pt 1 of Chapter 2 are: "8 What are the objects of this Act? The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 9 What principles are to be applied in the administration of this Act? The principles to be applied in the administration of this Act are as follows: (a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents. ... (e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved." 34 Those provisions need to be read in conjunction with ss 15 and 16(1) and (2) of the Act. Those latter sections provide relevantly: " 15 General role of the Minister The Minister is to promote a partnership approach between the government, non-government agencies, families, corporations, business agencies and the community in taking responsibility for and dealing with children and young persons who are in need of care and protection under this Act. 16 General role of the Director-General (1) Principal role The Director-General is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act. (2) Interagency procedures and protocols The Director-General is to promote the development of procedures and protocols with government departments and agencies and the community sector that promote the care and protection of children and young persons and to ensure that these procedures and protocols are implemented and regularly reviewed." 35 The Act does not contain any provision applicable to the Children's Court and corresponding to ss 15 and 16(1). The Children's Court Act 1987, which establishes that Court does not contain any such provision; but it does provide that a Local Court magistrate is not qualified to be appointed as a Children's Court magistrate unless that person has, in the opinion of the Chief Magistrate of the Local Courts, "such knowledge, qualifications, skills and experience in the law and the social and behavioural sciences and in dealing with children and young people and their families as the Chief Magistrate considers necessary to enable the person to exercise the functions of a children's magistrate." 36 The Children's Court Act establishes the Children's Court of New South Wales as "a court of record". "The term 'court of record' is one of well accepted legal connotation, and any court which has power to fine or imprison for contempt or for any other offence is at common law a court of record." (Ex parte Power; re Devereux (1957) 57 SR (NSW) 503 per Brereton J at 260.) 37 In my opinion a statutory provision that touches the role of the Children's Court in the working out in a particular case of the objects and principles of the Act should be construed in a way that maintains the proper standing and integrity of the Court as a statutory Court of record, established by statute as a specialised Court for the independent curial adjudication of disputes involving the care and support of children. This concept of the Court's role in the statutory scheme is strengthened, in my opinion, by the fact that ss 15 and 16 do not sweep the Court into the so-called "partnership approach" mentioned in s 15; or the so-called "coordinated strategies" approach mentioned in s 16. It is at least a real question whether a provision that did seek to include the Court in such approaches would be constitutionally valid: much of the reasoning of some of the Justices of the High Court of Australia in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 suggests that it might not be. It is, fortunately, unnecessary for present purposes to develop in any particular way that difficult point. 38 It seems to me that the construction of s 74 for which the present plaintiffs contend is incompatible with the maintenance of the proper standing and integrity of the Children's Court as outlined previously. Such a construction would mean that the Children's Court could conclude properly on the available evidence before it that the care and welfare of the particular child would be best served by providing, notwithstanding Departmental opposition, for the involvement of a non-departmental agency; and then have that proper conclusion simply defied and set at nought by the forensically unsuccessful Department's refusal to cooperate financially in the independently adjudicated care and welfare of the child, there being no other available means of financing that care and welfare. 39 In my opinion, such a construction of, in particular, s 74 of the Act, so far from promoting the underlying objects and principles of the statutory scheme, would seriously inhibit them by giving the two present plaintiffs, and their subordinate officials, a real, practical power, not subject to appellate review, to frustrate unilaterally an unpalatable decision reached by an impartial and independent Court of record after a full hearing on the merits. Absent unambiguous statutory language to the contrary, such a construction ought not, in my opinion, to be adopted. 40 The competing submissions refer to a number of curial decisions. I have not found any of them to be quite on point. Some of the decisions are English decisions dealing with the correct construction and application of s 38 of the Children Act 1989 (UK), a statutory provision that is not in the same, or in substantially the same, terms as s 74. 41 One of the latter decisions is, however, a decision of the House of Lords: in Re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489; and there are, in the speech of Lord Browne-Wilkinson with whom the other members of the House agreed, some observations which can be employed usefully in the admittedly different context of the New South Wales Act. The relevant passage is at 501F-H. It reads: "The Act should be construed purposively so as to give effect to the underlying intentions of Parliament. As I have sought to demonstrate, the dividing line between the functions of the court on the one hand and the local authority on the other is that a child in interim care is subject to control of the local authority, the court having no power to interfere with the local authority's decisions save in specified cases. The cases where, despite that overall control, the court is to have power to intervene are set out, inter alia, in subsections (6) and (7). The purpose of subsection (6) is to enable the court to obtain the information necessary for its own decision, notwithstanding the control over the child which in all other respects rests with the local authority. I therefore approach the subsection on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge properly its function of deciding whether or not to accede to the local authority's application to take the child away from its parents by obtaining a care order. To allow the local authority to decide what evidence is to go before the court at the final hearing would be in many cases, including the present, to allow the local authority by administrative decision to pre-empt the court's judicial decision." 42 Insofar as the present plaintiffs claim that s 74 of the Act does not authorise the making of order 2 of 16 May 2002, I am of the opinion that the claim has not been made good. 43 The plaintiffs pursue, however, an alternative attack upon the orders made on 16 May 2002. The relevant submissions are developed in a document headed "Supplementary Outline of Submissions on Behalf of the Plaintiffs" and filed in Court on 27 June last. Learned counsel for the plaintiffs acknowledged that the supplementary submissions thus advanced had not been put to the Children's Court; and that this Court might be minded, therefore, to decline to entertain them. 44 The supplementary submissions, if upheld, would entail that the orders of the Children's Court are invalid, not because of the operation in a particular sense of s 74, but because of the failure to observe other statutory preconditions for the making of such orders. Put simply, the supplementary submissions assert that the orders of the Children's Court, correctly construed, are final and not interim orders; that it was therefore a necessary precondition of the making of certain, at least, of the orders that a particular plan be first prepared by the second plaintiff and considered by the Children's Court; that such precondition had not been satisfied; and that some, at least, of the orders were therefore invalid. 45 I do not think that it would be correct in principle for this Court, absent some special considerations, simply to refuse to entertain submissions of that potential importance. 46 In my opinion the basic proposition upon which the supplementary submissions depend is erroneous. It seems to me that a sensible reading together of, in particular, orders 1, 6 and 7 makes plain that the true nature of the orders is that they are interim rather than final orders. The terms of ss 70 and be 70A of the Act seem to me to strengthen that conclusion. The orders of 16 May 2002 neither dismiss the original application, nor bring about otherwise its conclusion. 47 For the whole of the foregoing reasons I refuse the relief claimed in paras 2 and 3 of the summons. I make the orders sought in paras 1 and 4 of the summons. 48 I will hear counsel on the matter of costs. COUNSEL ADDRESSED ON COSTS 49 The plaintiffs will pay the costs of the second and fourth defendants. ********** Last Modified: 07/16/2002 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.