Supreme Court New South Wales Medium Neutral Citation: Secretary, Department Family and Community Services; Re "Lee" [2015] NSWSC 1276 Hearing dates: 2 September 2015 Date of orders: 02 September 2015 Decision date: 02 September 2015 Jurisdiction: Equity Before: Brereton J Decision: Secure accommodation orders continued Catchwords: FAMILY LAW AND CHILD WELFARE - exercise of parens patriae jurisdiction – where orders in place for parental responsibility and secure accommodation - continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs - importance of ability to detain and restrain child to ensure proper care - where guardianship order does not include powers to detain and restrain - where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders - unwillingness to discharge Court orders upon child's attaining 18 years of age until satisfied appropriate replacement orders in place. Cases Cited: Re Thomas [2009] NSWSC 217 Category: Procedural and other rulings Parties: Secretary, Department of Family and Community Services (first plaintiff) Minister for Family and Community Services (second plaintiff) Representation: Counsel: Mr G Moore (first and second plaintiffs) Ms S O'Reilly (child's separate representative) Solicitors: Crown Solicitor (Director-General) Child & Family Advocacy Service, Legal Aid NSW (child's separate representative) File Number(s): 2012/196324 Judgment (ex tempore) 1. The child "Lee", the subject of these proceedings, attains 18 years of age on Friday 4, September 2015. She is subject to an order of the Children's Court allocating parental responsibility to the Minister until she attains 18 years of age. Since 2012, she has also been the subject of proceedings in this Court, in which a secure accommodation order authorising the Secretary (or nominee) to detain her; to use whatever means are reasonably necessary, including reasonable force in doing so; and to restrain her in order to prevent her from injuring herself and others. Those orders were made in the parens patriae jurisdiction of this Court, as explained in Re Thomas [2009] NSWSC 217. 2. Of the several like cases that the Court has dealt with, Lee's is probably the most difficult, intransigent and challenging. Although a well thought out and considered plan was proposed and approved, to support her transition to adulthood, by a move from Sherwood House to a placement at Aberdare, she continually absconded from that placement and exposed herself to serious risks of physical, sexual and psychological harm. More recently, an alternative placement has been found for her at Belmont and, so far as the evidence goes, it appears that she has frequented it somewhat more consistently than previously, although on balance she spends more time away from it than at it. Lee remains in grave danger and, as has been described in a carer's report, appears to have very little sense of self, in that she has difficulty in recognising or accepting that she has been harmed or injured, and does not appear to recognise or care that she puts herself in harm's way. 3. Despite her overt resistance to her placement, there is evidence that suggests that she has established a close, if challenging, relationship with some of those who have been responsible for her care in recent years, and recognises them as persons to whom she can resort for support and care. 4. In the light of her persistent absconding, refusal to take her medication and reluctance to engage consistently with educators or service providers, a model has been adopted, with the Court's sanction, by which the Secretary and his staff have not routinely exercised the power to restrain and detain Lee, while retaining the discretion to do so and sometimes resorting to it. Thus Lee has been enabled more or less to come and go, hopefully establishing for her the concept that her placement is at least a safe place, to which she can resort if and when she feels the need to do so. In addition, provision for the allocation to her of a small sum of money on a daily basis creates an incentive for her to remain in contact with her carers, and thus an opportunity for them to monitor her welfare. Underpinning all of that has been the power to detain her, if judged necessary or appropriate in her interests from time to time, which power has been exercised through a recovery order on a number of occasions, even over the last month. 5. That the ability to detain and restrain Lee is an important underpinning of the current arrangements for her management is reinforced by the report of Kerry Lane, psychologist, of 27 August 2015, with whom Lee eventually met on 12 August. That report states that Lee is highly traumatised and requires a "wrap-around service with intensive support", without which her prognosis is extremely poor given her extensive history of trauma, her long list of psychological disorders, and her poor response to intervention. This indicates that if there is to be any hope for Lee's future, it is unlikely that she will receive the treatment she needs except in a very structured situation. In short, if turning up to appointments with psychologists and other service providers is left to her, it is unlikely to happen. That may well mean that resort to a more restrictive arrangement is required at some time in the future. 6. Normally, in a case such as this, when the parental responsibility order expires, it is replaced by a guardianship order made by the NSW Civil and Administrative Tribunal. On 22 July 2015, NCAT made an order appointing the Public Trustee as Lee's guardian for a period of 12 months from the date of the order, with the functions of advocating generally for Lee and, from 4 September 2015, deciding where she may reside and making decisions about services to be provided to her. The guardianship order does not apparently confer any power to detain Lee - unlike the guardianship order made in the not dissimilar case of Re Meryl. Moreover, one of the important issues concerning Lee is her apparent determination to become pregnant as soon as possible, in respect of which Ms Mann has reasonably expressed the concern that it would almost certainly result in the child's removal into care at birth, with consequent enormous adverse psychological impacts for Lee. The guardianship order appears to contain no power to make decisions about medical treatment including contraception. 7. I am even more troubled that despite the guardianship order of 22 July 2015, there appears to have been no engagement by the Public Guardian with the Secretary in order effectively to manage the transition of Lee's arrangements and how the Public Guardian might gain an appreciation of the issues, how they have been managed to date and how their management might continue. Close consultation between those with present and future responsibility for Lee's welfare is self-evidently essential if there is to be an optimal transition. 8. For those reasons, I am of the view that the guardianship order in its present form does not provide an adequate replacement safety net for that currently in place where there is parental responsibility to the Minister, coupled with the secure accommodation orders. As it seems to me the present situation is that the Minister's parental responsibility for Lee will, in any event, expire when she attains 18. Thereafter the only person who will have responsibility for her will be the Public Guardian, whose responsibility is limited in the way I have described. I do not think that satisfactorily provides for her challenging needs. In those circumstances, the Court should retain supervision of her care until a more satisfactory arrangement is in place, and I am not inclined to discharge the current orders effectively automatically upon Lee attaining 18 years. 9. I note that Ms Mann has previously deposed that while it is unusual for a placement for a young person in the Minister's care to continue after they turn 18, that can be arranged in some circumstances, and Family and Community Services is liaising with the National Disability Insurance Scheme in an effort to ensure that the Belmont placement can continue to be supported. 10. After Lee attains 18 years of age, the continued availability of the parens patriae power may become dubious. However, the power is one to make decisions for and in respect of persons who are unable to make the relevant decisions for themselves; that is, persons who need the court's protection. Conventionally it is exercised in respect of those who lack legal capacity, either because they are children, or because they are incapable. The circumstance that a child attains majority does not mean that the power ceases to be available, at least where upon attaining adulthood she remains incapable, for example because the lack of capacity is attributable not just to age but also to mental health. 11. Of course, the difficulty in cases such as this is to balance the personal autonomy of someone in Lee's position against the judgment as to what is in her best interests. So far as possible, individuals are ordinarily left to be responsible for their own decisions; courts only intervene where they lack sufficient capacity to do so. But the very fact that a guardianship order has been made at all is some indication that Lee still lacks that capacity, and there is ample evidence in the present proceedings to show that Lee's lack of capacity is not merely attributable to age, but to serious psychological disorders. 12. In order to enable the concerns to which I have referred to be addressed, I will adjourn the proceedings for seven days. 13. THE COURT ORDERS THAT: 1. Orders 1 and 2 made on 4 August 2015 continue until and including 9 September 2015; 2. The proceedings to be adjourned to 9 September 2015 at 9.45 before me; 3. The Secretary provide a copy of these orders and of my reasons to the Public Guardian. 1. These orders are to be entered forthwith, and I request a transcript of my reasons be produced as expeditiously as possible. ********** 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: 04 September 2015