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Crown Solicitor's Office

"Re June" and the impact of authorised carers being given an "opportunity to be heard" on other Supreme Court care and administrative review proceedings

Jennifer Wong, CSO Senior Solicitor

The decisions of Re June (No.2) [2013] NSWSC 1111 ("Re June") and Re Bella [2013] NSWSC 1034 amongst other things, recognises that authorised carers in accordance with s. 87 of the Children and Young Persons (Care and Protection) Act 1998 (the "Care Act"), have a right to be heard. Further to this decision there has been an emergence of greater recognition of an authorised carer's role in the care jurisdiction and their standing in proceedings generally.

Re June (No.2) [2013] NSWSC 1111

June was removed from the care of her mother and father in the days following her birth, because of concerns held by the Secretary, Department of Family and Community Services, about the parenting capacity of the mother and father, and drug abuse by the mother and father. By order of the Children's Court, June was placed under the interim parental responsibility of the Minister for Family and Community Services. The Secretary placed June in the day-to-day care of the plaintiffs, as authorised carers.

During the course of the Children's Court proceedings, the Secretary assessed that there was a realistic possibility of restoration of June to her father's care. The mother agreed with that assessment. The independent legal representative for June also agreed with that assessment, however, submitted that the restoration should take place over a longer period than that proposed by the Secretary.

An application by the plaintiffs to be joined as parties to the Children's Court proceedings was refused on 26 April 2013.

On 26 June 2013, the Children's Court made final orders which had the effect of restoring June to her father's care. The Secretary proposed to restore June to her father's care within seven days of the Children's Court orders.

On 28 June 2013, the plaintiffs filed a Summons in the Supreme Court seeking, in effect, a stay of the restoration of June to the father's care, and a review of the decision of the Children's Court.

Section 87 and the legislative scheme

The issue is whether authorised carers are entitled to the statutory opportunity to be heard and what constitutes as an opportunity to be heard under s. 87 of the Care Act.

His Honour in detail discussed the legislative scheme, and other sections of the Act that "throw some light on the application, in a particular case, of the command of s. 87(1)" at [159]). His Honour noted that "There are no doubt many other provisions which may be relevant in a particular case." (at [165])

Natural Justice and "rights" interpretation of section 87

His Honour looked at the common law principle of Natural Justice. Reference is made to the decision of J v Lieschke [1987] HCA 4; (1987) 162 CLR 447. In that decision it was established that the predecessor of the Children's Court, being the Children's Court established for the purposes of the Child Welfare Act 1939 (NSW), was obliged to afford natural justice to a person whose rights might be affected by its order.

His Honour stressed that s. 87 should not be read as applying to "rights" amenable only to the protection by the principle of Natural Justice. His Honour further elaborates that s. 87 recognises that there may be people affected by the making of an order who do not have "rights" of the kind that the common law would protect (at 170]). His Honour's view is that  s. 87 extends the ambit of that protection to such persons (at [171]).

In reading ss. 87 and 98 together, his Honour formed a view that s. 87 applied to the plaintiffs in this case because the plaintiffs (in the language of s. 98(3)) have "a genuine concern for the safety, welfare and wellbeing of" June; and the making of the orders sought by Community Services would have "a significant impact" on the plaintiffs.

His Honour noted that in those circumstances, a decision to take June away from the care of the plaintiffs would undoubtedly have a significant psychological and emotional impact on the carers.

His Honour emphasised that the content of the opportunity to be heard cannot be specified in a theoretical context. The content is based on a case by case situation and the facts of a particular case.

Re Bella [2013] NSWSC 1034

The proceedings were in relation to a secure accommodation application in the Supreme Court under "parens patriae" jurisdiction. The subject, a young person known in the proceedings by the pseudonym "Bella", was at the time 13 years of age.

On 21 March 2002 final orders were made in the Children's Court of NSW giving the Minister parental responsibility for Bella.

The applicants were the authorised carers for Bella from 31 March 2010 until 27 November 2012. They also continue to have joint parental responsibility with the Minister for Bella's older sister.

The placement of Bella with the applicants broke down in November 2012 as a result of Bella's behaviour and numerous episodes of absconding.

On 26 February 2013, on the application of the Secretary (then Director-General), Justice White made orders authorising the detention of Bella in secure premises in order that she be provided with care, treatment and education and to protect her from self-harm.  Bella's natural parents, the defendants in this application, were joined as parties to those proceedings. His Honour also made orders to protect the identity of the child, including pseudonym and non-publication orders.

The applicants in this application sought to be joined as parties to the proceedings, pursuant to r. 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR), which provides that a person may be joined as a party if their joinder is necessary to the determination of all matters in dispute.

On 24 July 2013, his Honour Justice White ordered that the applicants be joined as parties to the proceedings, after finding that it was in Bella's best interests that they be joined, and therefore "necessary" for the purposes of r. 6.24(1).

His Honour said that in deciding whether the applicants' joinder was necessary, regard must be had to the nature of the jurisdiction being exercised; the "parens patriae" jurisdiction is for the benefit and welfare of young persons (at [10]).

His Honour said the recent decision of McDougall J in Re June [2013] NSWSC 969 demonstrated the width of the jurisdiction and its ability to be invoked by persons in the position of the applicants (at [12]).

"The width of the parens patriae jurisdiction and its ability to be invoked by persons in the position of the applicants is demonstrated by the recent decision of McDougall J in Re June [2013] NSWSC 969 where, on the application of foster carers who were not parties to proceedings in the Children's Court, his Honour quashed orders of that Court notwithstanding that neither the child through her independent legal representative, nor the Minister, had brought proceedings for prerogative relief."

The applicants contended that their joinder was in Bella's best interests for the following reasons, which his Honour believed had force:

  1. When Bella's behaviour is stabilised, the applicants would like her to reside with them again; they contended that they would be well placed to provide information to the Court as to whether such an arrangement would be realistic.
  2. The applicants submitted that, due to their experience in caring for Bella, they are well placed to make submissions to the Court as to the appropriateness of the type of care being provided to her in present circumstances.
  3. Because of their continuing care for Bella's sister, the applicants contended that they are in the best position to inform the Court and the plaintiffs as to the similarities and differences between the sisters, and of the positive steps that have worked for Bella's sister in the past.

The application was opposed by the plaintiffs and the natural parents on a number of grounds, which his Honour dismissed:

  1. The Secretary referred to the potential for ongoing conflict between the defendants and the applicants and said that it would be likely to divert attention away from the therapeutic work being done with Bella. His Honour believed this was a matter of concern, but one that could be managed.
  2. The Secretary referred to the applicants' lack of constructive engagement with the Department in working together in Bella's interests. His Honour did not think that this was a reason to refuse joinder, and suggested that joinder should be productive of future constructive engagement.
  3. The Secretary also opposed the joinder on the basis of concerns held about the care provided by the applicants to Bella. His Honour commented that the adequacy of care provided to Bella is not a matter for judgement in these proceedings.

His Honour held that the applicants should be in a position to provide assistance to the Court, and it was likely to be in Bella's best interests for them to be joined as parties (at [20]).

Amendments to the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act

Under the new legislative scheme, overall there will be a greater acknowledgement of the role of authorised carers in proceedings, for example amendments that allow for an application for a contact order and the guardianship order provisions.

During the Second Reading speeches, upon the introduction to the lower house of Parliament, the recognition of authorised carers and the role of authorised carers in care proceedings were acknowledged by several members and in general indicates that the intention of the amendments is to provide for permanency and security for children in out of home care.

The Honourable member for Auburn, Barbara Perry in the second reading speech on 25 March 2013 stated:

"I note an area that requires amendment, which is the role of foster parents in court proceedings—something that came up on many occasions when I was shadow Minister. I recently came across a case involving foster parents who have been caring for a toddler for two years. The toddler has chronic health problems, which have seen her hospitalised on numerous occasions. The foster carers have been incredibly committed to this child's welfare, with one parent spending days in hospital with the child numerous times. Her specialist has said that her health conditions are life threatening. Yet her health issues were not at the fore in a recent court hearing about the child's future. The court is considering putting her in a family placement with five other children, where she would be in day care five days a week. When foster parents have been caring continually for a child for more than 12 months during the previous two years there should be the option for them to be joined to child protection proceedings so that their insights are also taken into account when it comes to determining the child's future."

The most important amendment in the context of authorised carers is that at the assessment stage a person will be assessed as both an authorised carer and prospective adoptive parent for adoption proceedings. The streamlining of these assessments indicates that once a child is placed in the day to day care and control of authorised carers, this placement is at the minimum permanent and adoption has been considered.

 

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