Re Rosie

HIS HONOUR: This is an urgent application by the Secretary, Department of Communities and Justice (DCJ) and the Minister for Families, Communities and Disability Services (the Minister) for secure accommodation orders and a non-publication suppression order and other orders in relation to a young girl.

In accordance with the usual practice of the Court that arise in protective and parental jurisdiction, the Court orders that the name of the child, the subject of the proceedings, not be published: see GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277 at [1] per Brereton JA (Emmett AJA agreeing).

I will refer to the young girl as Rosie.

The application is made by a summons which has been filed in court today and is brought under the Court's parens patriae jurisdiction.

In support of the application the plaintiffs rely upon an affidavit of Amy Eldridge dated 25 July 2022.

There is an exhibit to the affidavit.

Mr Dean of counsel has appeared on the application and provided the Court with valuable assistance.

He has also provided a written outline of submissions.

The extent of the parens patriae jurisdiction was considered by Lindsay J in GR v Secretary, Department of Communities and Justice [2020] NSWSC 892 at [23] to [32]:

The principles that guide the exercise of the jurisdiction particularly in relation to applications for secure accommodation orders were explained by Brereton J in Re Thomas [2009] NSWSC 217; (2009) 41 Fam LR 220.

Re Thomas has been cited and considered in numerous cases, not merely in relation to secure accommodation orders but also, for example, recently in relation to interim care orders: see Re ‘K’ and ‘M’ [2021] NSWSC 1314 per Sackar J explaining the breadth of the parens patriae jurisdiction.

It is generally necessary to distinguish between the jurisdiction the Court exercises in relation to children.

Thus, for example, the paramountcy principle in the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(1), that in any action or decision concerning a particular child or young person the safety, welfare and wellbeing of the child or young person are paramount, does not govern the exercise of the protective aspect of the Court's parental jurisdiction: see Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 at [39].

Ms Eldridge is a manager, case work with Metropolitan Intensive Support Services (Metro ISS) within the DCJ.

The DCJ case worker with responsibility for Rosie is Ms Dennes.

Ms Eldridge supervises Ms Dennes.

The Minister has parental responsibility for Rosie until she reaches 18 years of age pursuant to an order made by the Children's Court in 2015.

The immediate concern in relation to Rosie is that it is considered that she is at great risk in the community because of various matters, including physical and verbal violence, sexualised behaviour, increasing suicide ideation and self-harm and other matters listed and outlined in paragraph 14 of Ms Eldridge's affidavit.

Rosie has recently become involved with the juvenile justice system and is currently being held at a Youth Justice Centre.

That is as a consequence of charges being laid in July 2020 for inter alia common assault.

On 22 July 2022 a bail application was heard at the Children's Court and I am informed that the Magistrate indicated that due to Rosie's young age and her minor offences she should be released from custody.

The legal representative from DCJ on that occasion submitted Rosie should remain in the Youth Justice Centre for the weekend until this Court could be approached to seek orders for Rosie to enter into what is described as a specialised program. The submission was apparently acceded to.

On that occasion the Magistrate refused bail.

The urgency arises because the matter comes back before the Children's Court tomorrow morning.

It is not known what will occur tomorrow.

However, one possibility is that Rosie may be released from custody.

Ms Eldridge is concerned that Rosie has complex needs that cannot be thoroughly assessed or treated while she is in the community.

She is concerned that without intensive therapeutic work Rosie will continue to place herself at risk.

Ms Eldridge's affidavit gives a detailed history of Rosie's family, her education, general health, context with her family and her cultural identify.

The affidavit outlines the child protection history in relation to Rosie and her placement history.

Part of that history includes a placement with the MacKillop Family Services up until April 2020 and with the William Campbell Foundation from that time.

Remarkably between February 2021 and May 2021 Rosie was placed in five different foster care respite and out of guideline placements.

There have been other placements since then.

In late March 2022 the Intake Panel for the specialised program met to assess Rosie's eligibility for placement in the program.

She is considered eligible to enter the program but had recently had transition to an alternative care arrangement.

Her care had been transferred to Elver and her case manager to Metro ISS.

That occurred in early June 2022.

Until recently Aspire Homes Australia exercised the day-to-day care for Rosie.

On 15 July 2022 Aspire advised DCJ that the services were unable to continue to care for Rosie due to staffing constraints.

In June 2022 there have been various instances with Rosie self-harming and engaging in inappropriate conduct regarding herself and others who have treated her at various places, including hospital.

Subsequent to Rosie leaving hospital in early to mid-June there have been other instances of inappropriate physical behaviour to others.

In early July 2022 Rosie has been further involved in a number of instances at hospital, and whilst leaving hospital and travelling between placements and at a police station.

In early July 2022 as a consequence of an incident at her then placement Rosie was arrested and held in custody at the Youth Justice Centre which led to the charges that I have indicated.

Rosie has been seen by a psychiatrist, Dr Oldfield, in April 2022 who provided a detailed report at that time.

Rosie has been subsequently seen by Dr Oldfield in June 2022.

The proposal before the Court is that pending further order leave be granted to the Secretary, DCJ to detain Rosie at either Secure House or Secure Cottage in [location redacted] or FH House or FR Cottage, the secure premises and to use reasonable force, if necessary, to so detain her.

The details of the specialised program are set out in the affidavit of Ms Eldridge. In this regard I note the following:

The affidavit of Ms Eldridge gives details of the current residence of Secure House.

The details of Secure Cottage, FH House and FR Cottage at least in terms of capacity are noted above.

Ms Eldridge's affidavit addresses the alternatives to the specialised program.

Rosie does not meet the eligibility criteria for what is described as the interim care model placement due to her high level needs.

Restoration of Rosie to either parent is not a viable option.

On 18 July 2022 Ms Dennes spoke with Rosie over the phone and talked to her about entry into the program. She explained details of the program to Rosie.

The affidavit of Ms Eldridge indicates that Rosie told Ms Dennes that she was glad that she was not returning to her placement with Aspire and that she was happy to be moving to the specialised program and looking forward to living with others and learning new skills to help her with her emotions.

I am informed that earlier today Ms Dennes spoke with Rosie's biological mother and advised her of the prospect of Rosie's imminent entry into the specialised program and her biological mother expressed that she was happy to hear about this care option for Rosie if it could keep her safe.

The affidavit of Ms Eldridge addresses transfer arrangements.

On the basis that the orders are made DCJ will inform Youth Justice NSW of the orders and arrange for Rosie to be released from what I have described earlier as the Youth Justice Centre. It is anticipated that Rosie will be collected by her caseworker and security personnel (from Secure House) and that will occur within 24 hours of the orders being made.

Ms Eldridge in the affidavit sets out particular reasons supporting the application for Rosie to live at Secure House.

These include:

The evidence that has been presented to me satisfies me that Rosie is at great risk to both herself and to others in the community if an order is made for her release without any proposed arrangement such as has been described in the evidence of Ms Eldridge.

It is a serious matter to restrain the liberty of a person.

I must consider balancing the effect of orders that restrain Rosie's liberty against the risks that I have mentioned.

On balance I am currently satisfied that the proposed interference with her liberty and the detention order is necessary and likely beneficial for her welfare.

In the above circumstances I propose to make the orders sought with some slight modifications as raised with the plaintiff's counsel.

The orders propose that Rosie be separately represented and that a request be made that Legal Aid, New South Wales arrange such representation.

Almost contemporaneous with the time of the listing of this matter in Court an email was received from Amanda Dodson, Solicitor in Charge (Care and Protection) at Legal Aid. The email was sent to my Associate and copied to the plaintiff's representatives.

The email indicates that a representative of Legal Aid was unable to appear at the listing of the matter this afternoon. Nonetheless Legal Aid has, it seems, already commenced arrangements to allocate a representative for Rosie. The separate representation of Rosie has been allocated to Ms Sharon Luke who is also copied into the email correspondence.

Because of the seriousness of a detention order the orders properly make provision that the parties have liberty to apply on 24 hours' notice.

Such an order will readily permit those representing Rosie and acting in her interest, should they be so advised, to apply to the Court urgently for any variation or discharge of these orders.

Subject to that liberty to apply it is contemplated that the plaintiffs will provide a report concerning Rosie's progress at Secure House or one of the other named facilities if she goes to one of those other facilities.

Following discussion with Mr Dean on behalf of the plaintiffs I have modified slightly the proposed short minutes of order.

I have been informed that the summons and the supporting material has already been served on a Ms Kelso at Legal Aid prior to 3pm today.

Nonetheless, I will formally order that the time for the summons and the supporting material be formally served and be abridged to 5pm today and that service may be made by email.

One of the proposed orders provides for the plaintiffs to file and serve a report or evidence prior to the adjourned date concerning Rosie's progress, including information as to her move to the secure premises, her progress at those premises and information as to the frequency and types of all incidents, including the use of restraint.

I have modified the initial proposed order to indicate that other information that is proposed to be the subject of the order be provided if it is available, but nonetheless the matters I have just mentioned ought to be the subject of the order.

The orders of the Court are: