Supreme Court New South Wales Medium Neutral Citation: Director General, Department of Family and Community Services; Re Vernon [2011] NSWSC 1222 Hearing dates: 14 September 2011 Decision date: 14 September 2011 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: See [11] Catchwords: FAMILY LAW AND CHILD WELFARE - Parens patriae - Scope of power - Where 13-year-old child has a form of autism, developmental problems and an extensive history of physical aggression, violent and anti-social behaviour - Where Director-General and the Minister seek an order for the child to be placed in the care of a different institution to instigate a plan for his future care and also orders that include the ability to restrain and medicate the child whilst he is in the care of the new institution - Whether such order may be made in parens patriae jurisdiction Cases Cited: Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644 Category: Principal judgment Parties: Director General, Department of Family and Community Services (first plaintiff) Minister for Family and Community Services (second plaintiff) Representation: W Hunt (plaintiffs) R A Clarke (independent legal representative for Vernon) Crown Solicitor (plaintiffs) Ross A Clarke & Associates (independent legal representative for Vernon) File Number(s): SC 2011/296723 Publication restriction: In addition to the anonymisation of the child's name, this version of the judgment also further anonymises the institutions that have been or will be involved in the care of the child EX TEMPORE Judgment 1In this matter the Director-General of the Department of Family and Community Services ( "the Department" ) and the Minister for Family and Community Services ( "the Minister" ) seek orders in relation to a child to be known as Vernon for the purposes of these proceedings. There is detailed evidence before me about the nature of the problems in relation to Vernon, who is 13 years of age, and essentially the material establishes that Vernon suffers from a form of autism and developmental problems. However, there seems to be no question that there are problems which have led to a situation now of crisis after many years. 2Vernon was taken into care a number of times and in 2001 responsibility was given to the Minister. Since then there have been periods of foster care, some more successful than others. His situation at the moment is that a foster care agency has been looking after him but there have been significant problems, including considerable aggression and the need for a number of hospitalisations both in emergency units and even in psychiatric units in various hospitals. There has been, for example, an attack on the mother of another patient in one of the hospitals. 3There is evidence before me of a propensity to physical aggression, manifesting itself in the destruction of property. Photographs at pages 127-143 of Exhibit A would indicate that there are significant problems in relation to Vernon's behaviour that are very difficult to control and deal with. There have been a number of attempts to manage those problems but the position has reached a stage where, for example, hospital departments are not prepared to receive him when he needs to be received and there have been difficulties at a special school that he was attending. Some of these problems may well relate to the early traumas that he experienced shortly after his birth and even for a few years after that. 4There is some question about whether he suffers from a physiological problem but the expert evidence includes views expressing him rather to have behavioural problems. It is not necessary to form any concluded view about that at the moment. 5The problem is that he is now very difficult to manage and the Department and the Minister seek to put in place a plan for his future care which includes his immediate entry into a different institution which has actually taken steps to procure, on a rental basis, a rural property with a view to putting in place this proposed care plan. 6One of the problems is that in the past Vernon has always responded poorly to change and, not surprisingly, disorientation, and there is a concern that in the initial stages at least there will be difficulty in managing him there. Accordingly, the Department seeks orders that include the ability to restrain and to medicate Vernon whilst he is in the care of the new institution. Part of the proposal is that once he is settled into the new institution, there will be further steps taken to try to assess the nature and cause of his problems and the best way forward in dealing with them and it is proposed as part of this arrangement that the matter will be brought back to Court in November. 7I should mention at this stage that at the request of the plaintiff and with the consent of Mr Ross Clarke, I appointed Mr Clarke as the independent legal representative for Vernon. I have heard from Mr Clarke as to his views as to what is proposed by the Department and the Minister and he has indicated his consent to the orders that are sought. He has also made clear some of the things he would expect to be put in place in terms of a plan for the future, hopefully before the time the matter is next in Court. 8I think it is also appropriate to make an order that the motion be heard without the involvement of the natural parents of Vernon. It is important to note that the Minister was given responsibility for the child in 2001 and there has been no contact with either the natural mother or the natural father for a long time. 9I should say briefly that the question of the jurisdiction of the Court has been adverted to in very helpful submissions by Mr W Hunt, counsel for the plaintiffs, and my attention has been drawn to a number of decisions in the written submissions of Mr Hunt. In particular I mention the very detailed decision of Brereton J in Director-General, Department of Community Services; Re Thomas [2009] NSWSC 217 which was referred to and followed in a more recent unpublished decision of Slattery J. I do not see a need to repeat all that has been said in those cases. For present purposes I accept that it is appropriate for the Minister and the Department to seek orders of this kind rather than making a decision themselves about that. In particular, I accept what has been said by Brereton J in Re Thomas, in particular [28] of his Honour's decision and his review of English cases supports that position where his Honour said: "In the present proceedings, the Director-General seeks permission to detain Thomas indefinitely in a secure unit, and to restrain and medicate him as the circumstances may require. There is no statutory provision that authorises, or provides for, the detention of a child as an ongoing "non-temporary" aspect of his or her treatment and protection (s 158 of the Care Act, while authorising detention for some purposes, permits it only on a temporary basis). The present application is made on the premise that the proposed arrangements - in particular, insofar as it is proposed to confine Thomas in secure accommodation indefinitely - involve acts or procedures beyond the ordinary scope of parental power, so as to require the sanction of the Court as parens patriae. I agree that the indefinite confinement of a 15-year-old child in secure premises that he cannot leave of his own volition is beyond the ordinary scope of parental responsibility, and requires the sanction of the Court. While it can be accepted that parents have authority to interfere or restrict the liberty of their children to some extent, I cannot think it extends to the indefinite confinement of a 15-year-old. However, for the reasons that follow, I am satisfied that, within its wide parens patriae jurisdiction - under which the powers of the Court are more extensive than those of parents - the Court may authorise such confinement." 10The width of the parens patriae jurisdiction is adverted to in the two cases I have mentioned and also there is discussion of that in the decision of Austin J in Director General, New South Wales Department of Community Services v Y [1999] NSWSC 644. 11I am satisfied that it is in the interests of Vernon that the orders that the plaintiff seeks be made. ********** 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: 14 October 2011