Secretary, Department Family and Community Services; Re “Lee” [2015] NSWSC 2054

Supreme Court New South Wales

Medium Neutral Citation: Secretary, Department Family and Community Services; Re "Lee" [2015] NSWSC 2054 Hearing dates: 28 April 2015 Date of orders: 28 April 2015 Decision date: 28 April 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Child to be detained and restrained at care placement. Catchwords: FAMILY LAW AND CHILD WELFARE – secure accommodation order – Secretary given advice that justified in circumstances in not routinely restraining/detaining child. 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: M Neville (plaintiffs) S O'Reilly (child's separate representative)

Solicitors: Crown Solicitor (plaintiffs) Child & Family Advocacy Service, Legal Aid NSW (child's separate representative) File Number(s): 2012/146324

Judgment (ex tempore) 1. HIS HONOUR: Prior to 19 March 2015, Lee, the child the subject of these proceedings, had repeatedly absconded from her Allambie Care placement at Aberdare, finding various means of escaping from those premises and exposing herself to physical, sexual and other dangers. Since that time, a more liberal approach has been adopted to her management in the sense that the Department has not sought to confine her or restrain her against her will, but have encouraged her to return to her placement as at least a place of safe refuge. Lee has subsequently spent some time at her placement, but has also spent some considerable time away from it, including since the storms of about 21 April apparently occasioned some damage to the premises, which I understand have since been repaired. 2. It needs to be understood that this is an extraordinarily difficult and challenging case for those involved in managing it, and that while a strict approach to confinement and restraint might be thought to maximise Lee's safety, it will provide her with no basis for establishing a place in and relationship with the community after she attains 18 years of age (which is only a few months away). In any event, it has not succeeded in confining her to date. Moreover, Lee is not a prisoner who has been convicted of a crime and who is in custody in that sense. 3. The most important thing is to maximise the opportunities for Lee to engage with those who have responsibility for her care, so that there can be some monitoring of her whereabouts and welfare, and some ability to respond to emergencies. Undoubtedly, that involves a significant degree of risk; but the challenges of this case are such that while prospects of what might be called a successful outcome seem remote, the prospects of the least unsatisfactory outcome are probably enhanced by accepting that risk. 4. I am concerned that Lee is approaching her 18th birthday and the jurisdiction of this Court as parens patriae after that date, while it arguably continues, may be considered uncertain, so that it is important that the legal construct that is to be in place after her 18th birthday, whether by way of guardianship orders or otherwise, be considered and steps taken to establish that construct to enable a transition to it very expeditiously. 5. The Court orders that: 1. Until 16 June 2015, the Secretary, Department of Family and Community Services (the Secretary) or the Secretary's nominee may detain the child known as Lee at her Allambie Care placement at Aberdare, New South Wales, (the secure premises) and use whatever means are reasonably necessary, including reasonable force, in doing so. 2. Until 16 June 2015, the staff engaged or employed by the Secretary or nominee at the secure premises, using whatever assistance they may deem appropriate, may restrain Lee in order to prevent her from injuring herself and/or others and use so far as is necessary reasonable force in doing so. 3. The proceedings are adjourned to 16 June 2015 at 9.45 am before me. 4. The Secretary file and serve a report or evidence on or before 9 June 2015 concerning Lee's progress, including 1. information as to her progress at the Allambie Care placement; 2. information as to her progress in engaging with relevant service providers; 3. information as to her education; 4. information as to the frequency and types of all incidents, and if involving restraint, as to the type of restraint used and any injury suffered by Lee as a result and, if so, any medical attention provided; 5. information as to her health; 6. information as to contact with her family; and 7. details of the proposed arrangements for her legal status after attaining 18 years of age and of the steps that have been taken and are to be taken to enable transition to those arrangements. 1. Each party has liberty to apply on reasonable notice by arrangement with my associate. 2. Noting that the Secretary retains the power at his discretion to restrain and detain Lee in accordance with orders 1 and 2, the Secretary is justified, having regard to all of the evidence, and in an effort to encourage Lee's engagement with the placement and with Allambie and Family and Community Services staff, in not routinely detaining or restraining her. 3. These orders are to be entered forthwith.