GR v Secretary, Department of Family and Community Services and Justice & Ors (No 2)

This is the third time this year that, in the constrained circumstances of the Duty List, I have been required to consider an application by the mother for the return of her 15 year old son to her parental responsibility, supported by the father (the third respondent). At the conclusion of a hearing over two days interrupted by other matters, I made the orders set out in paragraph [54] below. In essence, those orders require a process to begin to attempt the transition of the child out of hospital. Whether that transition ends with his parents or otherwise will be for the Children’s Court to determine. These are the reasons for those orders.

There is no dispute that the child’s medical and psychological needs are very complex, arising from a diagnosis of Autism Spectrum Disorder Level 3, as a result of which he engages in avoidant restrictive food intake behaviours, which may or may not deserve an additional diagnosis of avoidant restrictive food intake disorder. The child is currently under the parental responsibility of the Minister for Families, Disabilities and Community Services (the “Minister”), the second respondent. With the exception of a short lived and unsuccessful discharge to out of home care, the child has been in hospital for approximately nine months.

There is currently part heard before the President of the Children’s Court, a care application under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the “CYP Act”) by the first respondent, the Secretary, Department of Communities and Justice (the “Secretary”), in which the Secretary seeks to have a supervision order formally made in respect of the child, rescinded, and a parental responsibility order in favour of the Minister substituted for it. That hearing commenced on 11 November 2019 and, after seven days of evidence, now stands adjourned for a further five day hearing recommencing on 6 January 2020.

By notice of motion filed in Court before Robb J on 17 September 2019, the mother seeks to invoke the parens patriae jurisdiction of this Court for orders to undo the current care arrangements in relation to the child and for him to be forthwith returned to her care. Her application is supported by the father, but is opposed by all the other parties to these proceedings and the amicus curiae.

I am satisfied that three matters constitute both a material change in circumstances and exceptional circumstances warranting the Court exercising the parens patriae jurisdiction to have made orders which I am satisfied are in the best interests of the child. Those three matters are the extended period of time the child has now been in hospital, the fact that the Children’s Court proceedings have now had to be adjourned to January 2020 with the consequence that any decision will now be further delayed, and certain observations made by the Court of Appeal in its most recent judgment in these proceedings. Nevertheless, I remain of the view I have expressed in my earlier judgments that the ultimate decision as to who should have legal responsibility for the child should be made by the Children’s Court, exercising its specialist jurisdiction.

Respecting the need for that to occur, I am nevertheless persuaded by the unanimous evidence of three eminent experts that orders should be made requiring the Minister and the Secretary to consent to and cooperate in the implementation of the initial phase of a proposed treatment plan designed to bring about the transition of the child from hospital either, it is to be hoped, back to the care of his parents or, if that proves not to be possible, into out of home accommodation under the supervision of suitably trained carers or as the Children’s Court may determine.

The mother appeared for herself. The father appeared for himself. Mr C McGorey of Counsel appeared for the Minister and the Secretary. Mrs E Stolier of Counsel appeared for the child, instructed by the child’s independent legal representative. Mr M Windsor of Senior Counsel appeared for the hospital (being where the child is currently being treated) as amicus curiae without objection by any other party.

These reasons should be read with my earlier judgment, which sets out the history of litigation in this Court up to that time: GR v Secretary, Department of Family and Community Services and Justice & Ors [2019] NSWSC 1073. That judgment was delivered on 21 August 2019 after a hearing conducted on 16 August 2019. On that occasion I declined an application by the mother identical to that which she has pressed again before me.

However, I made a number of further orders intended to give the parents a minimum level of access to the child and to permit their participation in his care in a way intended to give them an opportunity to demonstrate their ability to care for him. I have confirmed those orders after this most recent hearing. I made it clear in my earlier judgment that how that process worked out could be relevant to the ultimate decision of the Children’s Court.

On 3 and 12 September 2019, Slattery J and Robb J respectively declined to entertain further applications by the mother for relief of the kind which I had refused in August 2019. Their Honours were not satisfied that there had been a sufficient change of circumstances to justify departing from the regime which I had put in place.

On 7 November 2019, the Court of Appeal – constituted by Brereton JA and Emmett AJA – refused the mother’s application for leave to appeal from the decisions of Slattery J and Robb J: GR v Secretary, Department of Families, Disabilities and Community Services [2019] NSWCA 277. However, in the course of delivering the Court’s reasons, Brereton JA (a judge of great experience in matters of this kind) and with whom Emmett AJA agreed, made a number of observations of, with respect, considerable importance and which have in part moved the mother to renew her present application:

On 18 November 2019 the mother caused these proceedings to be relisted in the Duty List. As it happened, I was again the Duty Judge. At that time, the hearing before the President of the Children’s Court was continuing. I made directions for the preparation of a hearing in this Court which allowed for the conclusion of most of the evidence in the Children’s Court (all of which was intended to be available to this Court), adequate time for the preparation of evidence and submissions for the hearing before me and, most importantly, for the three medical experts to consider and report on four questions which I posed.

Two of the experts were retained by the Minister and the Secretary. The other expert had been retained by the mother. The four questions which I posed for their consideration and report were:

The joint experts’ report of 26 November 2019 summarised the child’s current circumstances:

The expert retained by the mother is a highly experienced child and adolescent psychiatrist. So too is one of the two experts retained by the Minister and Secretary. Their second expert, while also a qualified child and adolescent psychiatrist, is primarily a specialist in eating disorders and is head of the specialist unit in the hospital in which the child is currently being treated (to whom I shall refer as “Dr A”). Dr A was a most impressive witness who is clearly determined to do all he can to assist the child, including – to his credit – to work with the parents in the child’s interests, notwithstanding alleged conduct on the part of the mother that could justify a professional person being somewhat reticent about that course.

In the course of the experts’ concurrent evidence, Dr A provided this summary (T17:35-T18:6):

Importantly for present purposes, the joint experts’ report included what was referred to as the “proposed interim protocol” which the experts had prepared in response to the first question which I had posed for their consideration. I accept Mr Windsor SC’s submission that to avoid giving the “proposed interim protocol” canonical status with the word “protocol”, it is better to refer to it as the “Proposed Treatment Plan”. The Proposed Treatment Plan provides for a carefully managed and monitored process of transition, including working with the father and mother, with the ultimate intention of restoring the child to the care of his parents out of hospital.

I do not propose to set out the detail of the Proposed Treatment Plan, but make four observations about it:

During the course of the hearing, I asked the experts to attempt to identify what objective markers they could that could be used to monitor the implementation of the Proposed Treatment Plan, including giving some indicative time estimates as to how long each step in the Proposed Treatment Plan might take. I immediately acknowledge that, insofar as the time estimates were concerned, the Court accepts the evidence of the experts that any time estimate could be no more than that. The Proposed Treatment Plan relates to the management of a patient whose needs are unusually complex and whose progress under the Proposed Treatment Plan could be faster or slower than the experts expected. That refined version of the Proposed Treatment Plan became Exhibit 11 in the proceedings. It was itself the subject of further refinement during the overnight adjournment between the first and second days of the hearing. That more refined version, together with an addition proposed by the Minister and the Secretary, became Exhibit 12.

The mother’s starting point was essentially that summarised by Brereton JA (see paragraph [11] above) as “”give the alternative a go” and return [the child] to the parents”. However, at the conclusion of the evidence I indicated to the parties that they should address on only two options: either that the Court should do nothing or whether it should order the Minister and Secretary to consent to and cooperate in the implementation of the Proposed Treatment Plan. I did so because it was the unanimous evidence of the experts that immediate return of the child to his mother and father at the family home was not in his best interests (see paragraph [32(3)] below).

When the matter resumed on the second day, the parties’ positions in relation to the Proposed Treatment Plan became clear. The mother and father submitted that there were extraordinary circumstances warranting the exercise of the parens patriae jurisdiction (foremost the length of time the child had been in hospital with, it was submitted, little real improvement) and that the Court should order the implementation of the Proposed Treatment Plan. On the other hand, and notwithstanding the unanimous evidence of the medical experts that they thought the Proposed Treatment Plan was in the child’s best interests, the Minister, Secretary, the child’s independent legal representative and the hospital all opposed the Court making any orders, whether to give effect to the Proposed Treatment Plan or otherwise.

For the Minister and the Secretary it was submitted that the focus of the Proposed Treatment Plan was principally a medical perspective which provided a potential pathway for restoration to the parents. It was submitted that if the Minister and Secretary were bound to cooperate in the implementation of the Proposed Treatment Plan, they would thereby be bound to a path of restoration of the child to the parents without a proper examination or determination of the other child protection concerns which the Secretary considered relevant. Those matters were properly to be determined in the Children’s Court, because whether the child should be returned to his parents was not confined to the question of whether the child was at a safe weight and that the parents could demonstrate capacity to manage his restrictive eating in the home. The other issues relevant to determining restoration in the Children’s Court were:

Next, the Secretary and the Minister drew attention to the statutory framework for the exercising of parental responsibility under the CYP Act. In particular, it was submitted that under the statutory framework, where the Children’s Court vested the Minister with parental responsibility on an interim basis pending it making the final determinations under s 83 of that legislation, the Children’s Court could not fetter or direct how the Minister should exercise parental responsibility: Re Josie [2004] NSWSC 642. While it was accepted that the parens patriae jurisdiction is not subject to such fetters, it was submitted that the scheme of the CYP Act demonstrated that there was a public policy which recognised that those vested with parental responsibility ought to be permitted to exercise it as they deemed appropriate rather than through prescriptive orders.

The Secretary had already provided his assessment in the Children’s Court proceedings that on all the available evidence (not limited to the medical evidence) there was no realistic possibility of restoring the child to the parents within a reasonable time. It remained a matter for the Children’s Court whether that assessment was accepted. Nevertheless, it was submitted that in the meantime the Court should not order the Secretary to comply with the Proposed Treatment Plan insofar as its underlying assumption – the possibility of restoring the child to the parents – was contrary to the view which the Secretary had formed and expressed to the Children’s Court.

It was also submitted that the making of an order in relation to the Proposed Treatment Plan was unnecessary, because the Secretary supported the parents engaging with the child’s current treating team, subject to them doing so in a respectful and constructive manner. The Secretary supported what I have referred to as the initial phase of the Proposed Treatment Plan, but submitted that it was clear from Dr A’s evidence that there was no need for the Court to make orders for those steps to occur. The Secretary accepted that such a process would provide important information for the purposes of the Children’s Court proceedings. However, for reasons already referred to, this was not the only matter that would inform the ultimate decision of the Children’s Court.

Next it was submitted that requiring the Secretary to consent to and cooperate in the implementation of the Proposed Treatment Plan would open the Minister and the Secretary to further applications in the parens patriae jurisdiction by the parents who would contend that, somehow, the Minister and Secretary had not complied with that order. There had already been multiple applications to judges sitting in the Duty List, in circumstances where the duty judge has limited time to familiarise herself or himself with the complexity of the proceedings and properly to understand the circumstances that have informed any orders the Court might have made.

It was submitted that the making of an order in relation to the Proposed Treatment Plan would distract from what was in the child’s best interests, namely that the parties should focus on the Children’s Court proceedings and the procedure in that jurisdiction. Making any order in relation to the Proposed Treatment Plan would simply risk a perpetuation of more applications to this Court. This would particularly be the case because ordering the implementation of the Proposed Treatment Plan would create an expectation in the parents that if they complied with the plan, the child would be restored to them. If, for whatever reason it began to appear that was not going to be the outcome, the parents would inevitably again seek to invoke the jurisdiction of this Court.

Finally, it was submitted that, rather than making any orders, it would be sufficient for the Court to deliver a judgment setting out the expert evidence, the consensus reached and expressing whatever positive views the Court may have formed about the desirability of implementing the Proposed Treatment Plan. In Mr McGorey’s words (T29.11.19 at 9:33) “That in itself will be a powerful yardstick by which future courts and parties will be guided”.

The submissions made by Mrs Stolier on behalf of the child’s independent legal representative may be summarised as:

The submissions put on behalf of the hospital may be summarised as:

Finally, for her part the mother, supported by the father, sought for the entire Proposed Treatment Plan to be ordered to be implemented and that the Secretary be removed from having any role in consenting to medical procedures for the child because of what she described as the “very poor decisions” that had been made to date. She also submitted that the Secretary be removed from having any role in determining who should supervise visits by the parents.

It is convenient to begin with some general factual and legal propositions or conclusions:

The regime which I put in place in August was interlocutory. The change in material circumstances now warranting reconsideration of that regime, as well as the extraordinary circumstances now warranting exercise of the parens patriae jurisdiction, are, in my view, the same:

I do not accept the submission put by the parties other than the parents that the comparatively positive evidence about the child’s current medical condition (see paragraph [16] above) means that there are no extraordinary circumstances warranting the Court’s intervention. In many cases that submission would be correct. However, the length of time the child has been in hospital is, in and of itself, sufficient to overcome that submission because it is itself an extraordinary circumstance.

Having regard to the matters in paragraph 33 above, I am firmly of the view that it is in the child’s best interests for the initial phase of the Proposed Treatment Plan to be immediately implemented. There are at least three reasons for this conclusion.

First, it is plainly in the child’s best interests that he leave hospital as soon as it is safe for him to do so, taking into account his diagnosis, prognosis and complex needs. Accepting that the Minister and Secretary, together with the other active parties in these proceedings, have been understandably consumed by the Children’s Court proceedings and the present application, the time has come to focus on implementing a strategy for the child to leave hospital to be returned to his parents if that is the decision of the Children’s Court and otherwise to a suitable home-like environment.

Second, the best outcome for the child is that he be returned to the care of one or both of his parents, if that is possible having regard to all of the circumstances which will be considered in the Children’s Court. Implementation of the initial phase of the Proposed Treatment Plan maximises the prospects of the parents being able to demonstrate their suitability for the child to be returned to them, at least insofar as being able to show that they can feed and interact with the child in an appropriate way. I emphasise that the implementation of the initial phase of the Proposed Treatment Plan is not for the benefit of the parents. Rather, it is in the child’s best interests that his parents be given the opportunity to demonstrate their capacity for him to be returned to their care.

Third, while not a dispositive consideration, economic realities should not ignored. It is well established in the parens patriae jurisdiction that considerations of cost are not relevant when determining what is in a protected person’s best interests. The classic example is those cases where considerations of the cost of medical treatment play no part in the Court’s decision making if it is otherwise in the interests of a person to continue to receive a particular treatment. Nevertheless, in a case such as the present I am respectfully of the view, reflecting what I am confident are community expectations, that the child’s parents should be given every opportunity (assuming it is safe for the child) to demonstrate their fitness for the following reason. While not the subject of precisely quantified evidence before me, it is obvious that if the child is able to be cared for by his parents at home with NDIS support, that is likely to cost less than one of the alternatives that has already been attempted under governmental care, being provision of a serviced apartment and round the clock carers. I stress that if the latter is in the child’s best interests, the cost is not a reason why that should not be done. Nevertheless, the higher cost of such an alternative is a proper reason to ensure the prospects of restoring the child to his parents have been fully explored.

It will be noted that in expressing my conclusion I have referred to the initial phase of the Proposed Treatment Plan. This is because in formulating the orders which I made at the conclusion of the hearing, there were two matters in relation to which I accepted the submissions of Mrs Stolier for the child’s independent legal representative.

First, as I have recorded in paragraph [29(3)] above, Mrs Stolier pointed out that the Proposed Treatment Plan contemplated, as part of the transition, releasing the child to the parents for ongoing observation and supervision out of the hospital in a serviced apartment or similar accommodation. I accept her submission that to allow that to occur would be to trespass into an area which should be decided by the Children’s Court. As it happens, assuming the several steps which comprise the initial phase of the Proposed Treatment Plan occur within the indicative timings proposed by the experts, those steps will still be under way when the Children’s Court hearing resumes in January. Whether those further steps out of the hospital should be taken, by whom and if at all, will be matters for the Children’s Court.

Second, as I have recorded in paragraph [29(4)] above, Mrs Stolier submitted that any relief which contemplated the engagement of the parents with the child should be conditioned upon an undertaking from the parents not to raise false hopes in the child’s mind that he would in fact be going home to their care. I accept that it could be seriously detrimental to the child’s progress if the parents were able to build up his hopes (reflected in his repeated statements that he does want to go home, presumably at least to his mother if not both of his parents) for such hopes to be dashed if that is not the decision of the Children’s Court. A suitable form of undertaking was framed by the Court and was proffered by both parents.

I do not accept the submissions of the Minister and the Secretary that ordering them to consent to and co-operate in the implementation of the initial phase of the Proposed Treatment Plan puts them at risk of inconsistency with the position for which they have advocated in the Children’s Court. The orders which I made do not interfere with their ongoing exercise of parental responsibility. No does they require them to change their position in the Children’s Court if, when that hearing resumes, they remain of the same view. However, as I explain in paragraphs [47] and [48] below, the Court does expect the parents to be given, in good faith, the opportunity represented by the initial phase of the Proposed Treatment Plan, to the extent that the treating team do not advise the Minister and Secretary otherwise in the future.

I also reject the emollient submission that it would be sufficient for the Court to deliver a judgment saying something positive about the Proposed Treatment Plan and not make orders. For the reasons I have given, I was satisfied that orders should be made in the best interests of the child. Without suggesting that the parties would not take into account any views I may express were I nevertheless not to make any orders, it could equally be said that any reference to those views would be met with the observation that, whatever the Court may have intimated in its reasons, it had nevertheless declined to make orders.

Finally, I do not accept the hospital’s submissions to the effect that the Proposed Treatment Plan was somehow a hurried document expressed in a way which would be productive of doubt and dispute. The experts had the advantage of an adjournment overnight to make refinements and none of them expressed any qualifications about its utility for want of clarity of expression. My conclusion applies with greater force in relation to the expression of the steps comprising the initial phase of the Proposed Treatment Plan. In any event, the orders which I made were drawn to make clear that its ongoing operation was a matter for the treating doctors and that the Minister and Secretary were not bound as to their response to future developments.

There are three final observations which should be made.

First, no one should be in any doubt that, unless and until the Children’s Court decides otherwise, legal responsibility for the child remains with the Minister and the Secretary under the existing legal regime.

Second, I do not accept that the possibility of further applications to this Court is in and of itself a sufficient reason no to make orders which I am otherwise satisfied are in the child’s best interests. However, all parties – but especially the mother – must understand that it is not the proper function of this Court in the exercise of its parens patriae jurisdiction to micromanage or supervise the child’s treatment, including insofar as that involves the implementation of the Proposed Treatment Plan. The implementation of that plan (including any variations or cessation) is a matter to be determined primarily by the child’s treating doctors. The Court expects the Minister and the Secretary to cooperate in that process and has no reason to think that they have not in the past, or will not in the future, continue to act in accordance with the medical advice that is offered.

The Court also expects that cooperation to extend to the implementation of the Proposed Treatment Plan insofar as it involves the child’s parents, notwithstanding that the Minister and the Secretary have advocated to the Children’s Court that there is no realistic possibility of restoring the child to his parents. The Court’s orders are not intended to derogate from the Minister and Secretary’s responsibility in relation to, for example, whether or not there is supervision when the parents visit the child. However, insofar as those visits are part of the implementation of the Proposed Treatment Plan, the Court expects the issue of supervision of such visits primarily to be decided by the treating doctors, whose advice the Court expects will be accepted unless there is a very good reason otherwise in the best interests of the child. The Court has no doubt that if the treating doctors have any concerns about the parents being with the child unsupervised, they will recommend that should not occur, even if that departs from what is otherwise hoped for under the Proposed Treatment Plan.

Third, I respectfully echo what was said by Brereton JA in the Court of Appeal, that it may be thought to be in the child’s best interests that his parents focus on the Children’s Court hearing and making the most of the regime which I have now put in place. Much was said during the course of the hearing (including by me) in relation to the behaviour of the parents, in particular concerning allegations (which I have not determined) about their conduct towards hospital staff, case workers and carers. I fully appreciate how stressful the child’s circumstances have been for the parents. Nevertheless, the Court’s orders have been made in the expectation that the child’s parents will be respectful, collaborative and courteous in their dealings with anyone connected with the child’s care, including hospital staff, case workers, carers and the representatives of the Minister and the Secretary. Equally, the Court has every confidence that such behaviour by the parents will be reciprocated by those other persons.

Appropriate behaviour on the part of the child’s parents is in the best interests of the child because it is a step along the way to demonstrating that the child could (not should) be returned to where the law and the community regard any child as properly belonging, namely in the care of his or her parents in the absence of significant circumstances demonstrating that such restoration is not in the best interests of the child. The child’s parents should be left in no doubt by what I said to them during the course of the hearing, and now reiterate in what follows. The Court’s objective in making the orders which I did in August and at the conclusion of this most recent hearing, is to ensure that if the Children’s Court, in the exercise of its specialist jurisdiction, does not ultimately return parental responsibility to the mother or father or both of them, it will not be for want of them having been given every possible opportunity (subject only to the safety and wellbeing of the child) to demonstrate that such a return was in the best interests of the child.

Two matters in relation to costs should be recorded.

First, the mother’s notice of motion sought costs orders in relation to previous hearings. Given the time constraints of the hearing before me and its singular focus on the current circumstances of the child, neither evidence nor submissions were directed to this aspect of the mother’s notice of motion. The dismissal of the notice of motion does not prevent the mother making an application for costs to the extent she may be entitled to them in relation to appearances where no costs order was made. However, I again encourage her to focus on the opportunity presented by the orders I have made and on the Children’s Court proceedings.

Second, in relation to the costs of the hearing before me, I indicated that my disposition was to make no order as to costs. This had been the outcome at the earlier hearing before me in August 2019 and also in the Court of Appeal. Mr McGorey submitted that the costs of this hearing should be reserved, on the basis that the ultimate outcome of the mother’s amended summons (which is now the moving process in the proceedings) may be relevant. I respectfully disagree. This latest hearing before me has been a discrete exercise confined to the evidence of circumstances as they stand at the moment. Having regard to the wider costs discretion that applies in the exercise of the parens patriae jurisdiction as opposed to more usual adversarial litigation, I was satisfied that the appropriate exercise of the costs discretion was for the Court to make no order as to costs with the intention that each party bear his, her or its own costs.

The orders which I made at the conclusion of the hearing were: