Re Alexis [2011] NSWSC 1545

Supreme Court New South Wales

Medium Neutral Citation: Re Alexis [2011] NSWSC 1545 Hearing dates: 23 November 2011 Decision date: 23 November 2011 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to para [19] of judgment. Catchwords: CHILDREN - parens patriae jurisdiction - secure accommodation order Category: Interlocutory applications Parties: New South Wales Department of Community Services (1st Plaintiff) Minister for Family and Community Services (2nd Plaintiff) (1st Defendant) (2nd Defendant) Alexis (3rd Defendant) Representation: M England (Director-General, Department of Family and Community Services) M Karagiannis (Alexis) Crown Solicitor (Plaintiffs) Legal Aid (3rd Defendant) File Number(s): 2011/374823

Judgment 1HIS HONOUR: I order that these proceedings be known as "Re Alexis", that the child the subject of proceedings be known as "Alexis", and that there be no publication that would identify, or tend to identify, that young person except for the purpose of the proper conduct of the proceedings. 2This is an application by the Director-General for Department of Family and Community Services and by the Minister for Family and Community Services for orders authorising the detention of Alexis in secure premises in order that she can be provided with care, treatment and education, to protect her from self-harm, and to protect others from harm from her. 3Alexis has had a troubled history. It is unnecessary to delve into the details. She is presently fourteen. She was taken into care by what was then the Department of Community Services in 2008. 4On 6 November 2008 the Children's Court made final orders allocating parental responsibility for her to the Minister for Community Services until she turned eighteen. 5From May 2008 Alexis has been placed in the care of numerous people and institutions. Her placements with carers have been of only short duration and have broken down due to behavioural issues. 6She now has an extensive criminal history, largely as a result of her inability to control her anger, resulting in her committing assaults on carers or on police who have been called. She has been placed in custody at the Juniperina Juvenile Justice Centre on a number of occasions. She has also been placed, on a number of occasions, with the Marist Youth Care Centre, but has absconded and has, on a number of occasions, been arrested for breaking bail conditions or assault. 7She has been diagnosed with a number of psychiatric conditions including bipolar disorder. 8In recent months her mental health appears to have deteriorated. On five occasions she has harmed, or threatened to harm, herself. She has attempted suicide. 9At present she is in involuntary detention in a secure facility at Westmead Hospital but it is unsuitable for her long-term treatment and care. Effectively she is isolated and is not obtaining an education she needs. 10According to a report of Dr Hearps, consultant psychiatrist with Justice Health, Alexis has recognised problems with her anger and said she wanted help, although she had difficulty articulating what that help might comprise. She expressed concerns to avoid the restrictions she perceived were inherent in her current placement, but did want to move to a new place where she could " start again ". 11Such a facility is available at a place of residence in south-west Sydney managed by the Department of Family and Community Services. The facility provides security that is needed for the care and treatment of Alexis, the management of the therapy that psychiatrists have recommended, and education. It also can provide an opportunity for social interaction with other teenagers. 12It is clear that some involuntary restraint is required in Alexis' own best interests to protect her from self-harm, to protect her from harm by others, and to protect others from harm by her. 13When she absconds, as she has done, she has found herself at risk of physical or sexual abuse. Involuntary detention is also required to ensure that her treatment program can be properly administered. 14For her care she needs to be in a stable and permanent environment. It is clear the proposed facility provides the best such environment available. 15Her treating psychiatrist notes that alternative treatment options have been exhausted and that her admission to the facility in question is necessary. The basis for that opinion is set out in detail in the material provided on this application. 16It is not disputed that the arrangements sought go beyond the ordinary scope of the Minister's parental power and that an order of this Court in the exercise of the Crown's parens patriae jurisdiction is required. That power is to be exercised in the interests of the child. I am satisfied that the orders sought are in Alexis' interests. 17Following what I understand to be the usual practice in such matters, Alexis has not herself been named as a defendant. Provided there is no complication that would tend to identify her, I think she should be a party, given that the orders sought directly affect her. For example, there should be no question of her right to appeal from the order. 18As is customary in such matters Alexis has been separately represented by a legal representative through the Legal Aid Commission of New South Wales. Her representative properly does not oppose any of the orders sought. 19For these reasons I make the following orders: 1. That the child the subject of this application be joined as the third defendant, noting that I have already ordered that she be known as Alexis and that there be no publication that would tend to identify her. 2. Until further order, leave be given to the Director-General, Department of Family and Community Services, or the Director-General's nominee, to detain Alexis at secure premises ("the premises"), and to use reasonable force if necessary to detain her. I grant leave to the Director-General, or the Director-General's nominee, using whatever assistance he or she may deem appropriate, to take Alexis to such premises. 3. Until further order, the staff engaged or employed by the Director-General at the premises, using whatever assistance may be necessary and using reasonable force if necessary, be authorised to restrain Alexis in order to: (a) prevent her from injuring herself or others; or (b) administer medication in accordance with medical advice. 4. I give liberty to the parties to apply on reasonable notice which may be less than 24 hours depending on the circumstances. 5. I direct that by 17 February 2012 the Director-General file and serve a report or evidence concerning Alexis' progress, including: (a) a detailed report from her treating psychiatrist and/or any treating psychologist; (b) the further information as to her progress in engaging with relevant service providers to address symptoms of depression and self harm behaviour; (c) information as to her education; (d) information as to frequency of and types of incidents; (e) information as to her progress in the premises; (f) information as to contact with her family; (g) information as to medical matters; and (h) information as to all assessments and referrals. 6. I stand the proceedings over to 9.30 am on 23 February 2012. 7. I order that Alexis be separately represented. 8. These orders may be entered forthwith. 9. I order that the summons, notice of motion and affidavit of Simon Barry not be disclosed or made available for inspection to any member of the public and that none of the contents of those documents be available to any member of the public by search without prior leave of a Judge. 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: 13 December 2011