GR v Secretary, Department of Communities and Justice

1. [1]

   GLEESON JA: I agree that the summons for leave to appeal should be dismissed with costs, for the reasons given by Mitchelmore JA. I also agree that the applicant’s notice of motion filed 9 February 2022, challenging the costs order made by Simpson AJA should be dismissed with costs, for the reasons given by Brereton JA.

2. [2]

   BRERETON JA: Arwyn – not his real name – whose interests are the focus of these proceedings, is an intelligent young person who has an extreme degree of autism, as a result of which he has been prone to isolate himself from others, preferring the company of his computer to that of other human beings and communicating orally only selectively; to controlling and sometimes violent behaviours towards his parents; and to restrict his food intake, sometimes to the point of endangering his own life. Parenting him would have challenged the most capable of parents. It is to the great credit of both his parents, his mother the applicant GR and his father the third respondent BB, that despite everything that has occurred, before and during the proceedings, they both remain dedicated to his welfare. It is unfortunate that the frustration, despair and sometimes concrete thinking of the mother, who is an obviously intelligent woman and (contrary to some suggestions) does not demonstrate any frank psychosis, has contributed to a situation in which, where Arwyn’s interests demand co-operation and goodwill between the parents and the agencies involved in his care, there is only hostility.

3. [3]

   After a lengthy litigious history, on 3 April 2020 the then President of the Children’s Court (Johnstone ChCP) made orders allocating parental responsibility for Arwyn to the Minister for Families Communities and Disability Services (“the Minister”) until he attains 18 years of age. [1] On 27 August 2021, Sackar J in the Equity Division dismissed an appeal brought by GR from the orders of the Children’s Court. [2] GR now seeks leave to appeal to this Court. There is also before the Court a motion filed by GR seeking review of interlocutory orders made by Simpson AJA.

4. [4]

   As will become apparent, there are aspects of the case which are troubling. At the forefront of them is the very fact that an autistic child who four years ago at the age of 13 was residing with his parents, albeit in less than satisfactory circumstances, has ostensibly in his better interests spent most of the last three years – perhaps the most important period for formation of a young person’s life and character – involuntarily confined and hospitalised, and at times sedated and “force fed” by nasogastric tube when refusing to eat in protest at his removal from his preferred place. To my mind the position is not nearly so clear cut as, but significantly more ambiguous than, that suggested by the judgment below. In particular, it is not clear to me that overall Arwyn has been benefitted by the course of admissions and treatment which has been undertaken – that is to say, while his circumstances were and were likely to remain fraught if he were not assumed into care, it is questionable whether the trauma associated with his repeated admissions and involuntary treatment resulting in limited gains is preferable. While I eschew any suggestion that there has been deliberate impropriety on the part of Community Services, I am concerned that there has at times been far too ready a disposition to consent to extreme medical treatments for Arwyn, and to confine him, without the authority of the Court, and to exclude his parents, in particular GR, from contact with him and access to information about his treatment. Associated with this, I am also concerned that GR, as a litigant in person, has been denied the opportunity to obtain what could have been relevant evidence, by interventions that have deterred medical professionals from engaging with her. There is not a little irony in the circumstance that while it appears that GR’s administration of Olanzapine, an antipsychotic drug, to Arwyn, was one of the triggers for Community Services’ intervention, it seems to have been the prescription of large doses of depot Olanzapine by Associate Professor Madden that ultimately ameliorated his condition while in the care of Community Services. I am not unconcerned that there has been a disposition, on the part of Community Services, medical professionals, and even courts – generated in part by GR’s fraught interpersonal interactions, social insensitivity and hostility, her persistent and sometimes inflammatory approaches and applications (which I see as largely driven by frustration and desperation), and a perception that she has been less than honest – to view her repeated attempts to have Arwyn restored to her care as vexatious, to leap too readily to conclusions adverse to her, and to reject some of her more meritorious arguments.

5. [5]

   But despite these reservations and concerns, I have come to the conclusion that the proper disposition of this application requires that leave to appeal be refused. That is essentially because the ultimate question in an appeal would be whether, considering the position that obtains in the present rather than that which existed in the past, and in circumstances where Arwyn is now only a few months short of 18 years of age, a different order should now be made for Arwyn’s parental and care responsibility for those remaining months. In my judgment, there is no realistic prospect that a different order would now be made.

Background

1. [6]

   What follows is a very abbreviated and incomplete account of the saga which precedes the present application. It focusses more on Arwyn and his care and medical treatment than on the litigious history, although there is some reference to some of the more important aspects of the latter.

2. [7]

   Findings have been made, by Johnstone ChCP and by Sackar J, adverse to GR’s honesty. Those judges enjoyed a considerable advantage over this Court in reaching their conclusions, having had a much more extensive opportunity than this Court to see and hear her. Even if it were open to this Court to take the view that her many overstatements and misstatements were not manifestations of deliberate dishonesty but reflect a propensity selectively to hear, remember and repeat what she wants or likes to hear, it would still require great caution to rely upon what she attributes to others, and resort must be had to the sources, rather than to her restatements.

3. [8]

   Arwyn was born on 27 October 2004. It became apparent early in his life that he had disabilities. The father left his employment to become Arwyn’s primary carer, while the mother practised as a general medical practitioner in Charlestown. Arwyn completed kindergarten at Charlestown South Primary School in 2010, where he was observed to have difficulties in organising himself for activities, and regularly not to finish his recess or lunch meals. [3] His father reported that he was assessed as autistic by a child psychologist and his autism was affecting his learning and social interaction. [4] In 2011, a consultant clinical psychologist reported that Arwyn had a number of behavioural difficulties, including “a very limited diet”, and made a number of recommendations to assist his parents to manage them. [5]

4. [9]

   In the meantime, GR encountered a number of conflicts at work and in connection with an investment property. [6] Arwyn’s behaviour continued to deteriorate; he became increasingly violent towards his father, and he had a poor school attendance record. [7] However he was much happier and more willing to attend school in 2016, when he moved from Charlestown South Primary School to an opportunity class at New Lambton South Public School.

5. [10]

   On 1 April 2016, Arwyn was admitted to John Hunter Hospital with a three-day history of an irritable left hip. An ultrasound showed some extra fluid in the hip joint space suggestive of inflammation. Later, Dr Thomson Bowe would report that extensive investigation including an MRI showed no evidence of any serious cause such as infection. [8] According to the hospital notes, left hip joint aspiration and MRI of the pelvis on 4 April 2016 disclosed no evidence of septic arthritis. On 3 April 2016, Community Services received a report which expressed concerns that GR was unwilling to permit Arwyn, who had presented with a sore hip, to stay in hospital for a proper diagnosis, was misusing her status as a medical practitioner to obtain medical results, misdiagnose his condition and prescribe unnecessary medication (she maintained that he had a septic hip, which the evidence did not support); that she had previously wanted Arwyn medicated for behaviours not currently seen to be displayed; and it was noted that there was an historic report raising concern about very restrictive behaviours by the parents and a clear regression in Arwyn’s emotional health and cognitive and general functioning. [9] However, nothing suggesting any of those concerns appears in the discharge referral. [10] The father has submitted what appears to be a letter of Dr Walker, radiologist of Hunter Imaging Group, of 8 April 2016, which appears to express the opinion that the same MRI of 4 April 2016 evidenced septic arthritis. [11] The mother prescribed antibiotics, and according to the parents, the hip problem resolved.

6. [11]

   Following comprehensive diagnostic assessments of Arwyn on 21 September and 12 October 2016, in order “to review his developmental progress and ongoing needs, to assist with school planning, particularly to assist with the transition to high school” in 2017, a child development psychologist considered his social communication delays, obsessive interests and sensory sensitivity to be consistent with a diagnosis of Autism Spectrum Disorder (Social Communication Support Level 2, Behaviour Support Level 2) with Anxiety Disorder, and reported: [12]

7. [12]

   The following recommendations were made: [13]

8. [13]

   In December 2016, the family embarked on a cruise, to the USA and South America. Arwyn became violent to his parents, particularly his father whom he assaulted daily, resulting in security being called. [14] According to a report by the ship’s doctor, the mother went ashore in Valparaiso, Chile, and purchased Olanzapine (an antipsychotic agent typically indicated for schizophrenia and related psychoses, and bipolar disorder), over the counter. (This was disputed by GR, but the doctor’s report was accepted by Sackar J). On account of the risk posed by Arwyn’s propensity to violence, the family was required to disembark at the first suitable port. [15]

9. [14]

   On 19 January 2017, and again on 22 March 2017, Arwyn (then aged 12 years) was twice prescribed Olanzapine, each prescription being for a quantity of 28 with 5 repeats. Although these prescriptions were written by GR, she said that it was prescribed by two psychiatrists. [16] In an email she sent to Dr Kable on 27 February 2019, seeking his support for her attempt to have Arwyn restored to her care, GR herself wrote, “Say that I only prescribed Olanzapine twice as a follow up script to that prescribed in the Central Florida Behavioural Hospital on 7 January 2017 to Arwyn for acute psychotic episode, and on your advice to continue it”. [17] A report of Dr Llinas confirmed that he had recommended Olanzapine when he saw Arwyn in December 2016 at the Central Florida Behavioural Hospital in the USA. [18] The medication was admittedly administered by GR, by mixing it in his water; GR says that she did this on the advice of Dr Kable. Dr Kable’s notes of his consultation with GR on 21 February 2018 record “They gave 3 week olanzapine after talking to me”. [19] On 23 March 2017, Community Services received a report that GR was administering Olanzapine to Arwyn, by dissolving it in his water without his knowledge, and was pressing for a diagnosis of a psychotic disorder when he was clearly autistic; also, that Arwyn was consistently reporting that GR beats him with an open hand and BB holds him down so that she can. [20] On 2 May 2017, Community Services received a further report, expressing concerns about “educational neglect” in that Arwyn was not attending school, and also referring to GR belittling the father and being a hoarder, resulting in trip hazards in the home. [21]

10. [15]

    Violence by Arwyn against his father persisted, while he shunned his mother and did not speak to her. [22] On 8 May 2017, Community Services received a report that Arwyn was engaging in “serious self-harming/risk-taking behaviour” including being “constantly abusive (to the point of injury) towards [BB]” and that it appeared that the parents were unable to cope. [23] On 15 May 2017, Community Services received a report that GR had disclosed that Arwyn was bashing his father and that they needed immediate respite for Arwyn. [24] On 16 May 2017, Community Services received a further report of domestic violence by GR against the father (including that the father had stated that on Valentine’s Day, in Arwyn’s presence, GR had been verbally abusive to the father and threatened to cut him with a knife), that Arwyn was not attending school, and that firemen had attended on multiple occasions to remove barricades erected by Arwyn for his own safety. [25] On 18 May 2017, Community Services received another report that Arwyn was becoming almost uncontrollable at home, that the parents’ relationship was becoming violent, and that Arwyn had not been at school since 9 May 2017. [26] On 19 May 2017, Community Services received yet another report, expressing concerns that though Arwyn was supposedly a high functioning Autistic child, he did not appear to be high functioning; that he barricaded himself in his room while his mother was at home, and ran away and screamed when he saw his mother; that he had disclosed that GR injected him with an anti-psychotic drug; that the father had stated that he had two hip infections; and that Arwyn was very attached to his father, who was physically exhausted and saw no way out of the situation. [27]

11. [16]

    Arwyn commenced secondary school at Newcastle Grammar School in 2017. However, as at 31 May 2017 he had missed 51 days of school out of 77, and was late on 22 of the 26 days that he did attend. In Term 2, he stopped attending altogether; he said that he disliked moving between classes. [28]

12. [17]

    Between 5 and 13 June 2017, Justiz Community made daily visits and attempts to get Arwyn to attend school, without success, but were able to engage to some extent with Arwyn. [29] However, on 7 July, the father informed Community Services that GR wanted nothing more to do with Justiz, and their services were no longer required. [30] I have been unable to ascertain from the record whether there is admissible evidence to support GR’s assertion that she was thereafter able to procure his attendance at school – although, as appears below, his attendance appears to have improved in the first half of 2018. However, GR retained Dr Colin Kable, a child and adolescent psychiatrist, who saw Arwyn in June 2017 with the father; GR attended towards the end of the consultation, it seems because Arwyn did not want her to be present and there was concern that he would not participate if she were there at the outset. [31]

13. [18]

    On 18 June 2017, Arwyn was admitted to the Emergency Department of John Hunter Hospital after the father had called police to the home because Arwyn had assaulted him. After he settled at hospital, the father took him home. [32]

14. [19]

    According to a psychologist who saw Arwyn with his father on 10 July 2017: [33]

15. [20]

    On 6 September 2017, Arwyn again attended the Emergency Department of John Hunter Hospital with hip pain, this time in the right hip. He was afebrile. He was discharged on the same day. The parents again attributed this to an infection, but I have seen no independent medical evidence to support this. The father’s view was based on the child’s apparent response to antibiotics prescribed by GR. [34]

16. [21]

    On 19 October 2017, GR told Community Services that Arwyn needed to be placed in “voluntary care”, as his behaviours were too extreme for her to manage, and she asked the caseworker to “come and get him”. Two caseworkers went to the family home, where GR met them outside. The caseworkers explained the effect of a Temporary Care Agreement, but GR said that Arwyn had calmed down, and that removing him from the home environment would cause him to escalate. She declined the caseworkers’ request to enter and talk to Arwyn. [35]

17. [22]

    When caseworkers again visited the home on 24 October 2017, the father was visibly upset, saying he wanted to leave the residence, as he felt there was no more he could do for his son and his controlling and physical behaviours. Arwyn was refusing to eat or drink. GR said that she thought Arwyn was suffering from mental health issues in the nature of psychotic episodes. She attributed Arwyn’s non-compliance to “dad’s mothering since he was a baby.” [36]

18. [23]

    Subsequent attempts by caseworkers to carry out home visits on 15 November 2017 and 28 November 2017 were unsuccessful. [37] On 1 December 2017, caseworkers attended at the home and observed a work van in the driveway; the father explained that Arwyn had damaged some property. The worker told the caseworkers that he had replaced a glass door upstairs, and that this was the second time he had done so. The father would not allow the caseworkers to enter, saying that it was GR’s house and she did not want them inside. The father also said that he wanted it to be known that he was not the barrier to the child being able to access help; he felt that he had been the one to ask for help for Arwyn, but that it is always stopped by the mother. He believed that the child has separation anxiety from him, and that the mother suffers from separation anxiety from the child. He said that he believed that the child hated his mother, but did not know the reason. [38]

19. [24]

    On 5 December 2017, the father informed the director of student services at Newcastle Grammar School of further episodes of seriously troubling behaviour by Arwyn, and the school advised that it would need significant support to continue to meet Arwyn’s needs. [39] After seeing the father on his own on 6 December 2017, [40] Dr Kable told Community Services that – based only on the information provided by the parents – he felt there was a possibility that Arwyn may be suffering from a degenerative neurological illness or psychosis, and had made a referral to the NEXUS program, but was concerned whether the parents would follow through with it. [41] He also raised concerns about GR’s mental health. Over the ensuing days, there were discussions with the parents about these recommendations, but nothing appears to have come of them. [42]

20. [25]

    On 20 December 2017, the father informed caseworker Tina Zart that he was the victim of domestic violence from both Arwyn and GR, and asked if Community Services would support him if he went to the police with information about GR’s behaviour: [43]

21. [26]

    On 18 January 2018, GR attended a meeting at Newcastle Grammar School, when it was decided to obtain a further assessment of Arwyn. [45] Arwyn did not return to Newcastle Grammar when school resumed on 6 February 2018. On 26 February 2018, Dr John Waring, clinical psychologist, following a short interview with Arwyn and a longer interview with the parents (GR participating by phone), reported that Arwyn’s presentation was of a selectively mute boy who “could not or would not respond to any of my approaches”. [46] He stated: [47]

22. [27]

    In or around March 2018, Arwyn commenced attending Whitebridge High School. [48] On 14 March, Community Services received a report that his self-care, learning and mental health were deteriorating, and that two offers of medical assessments, including by a paediatrician and psychologist, had not been accepted, except on one occasion by the father alone. [49] On 15 March, the school told Community Services that it was inappropriate for Arwyn to be in a mainstream class and that he ought to be in an autism class; that Dr Kable had informed the school that Arwyn was being bribed to go to school; that one or other of the parents was on the phone almost daily, usually GR demanding that the school ensure that Arwyn eats, drinks and interacts with other children (to which she responded that this was not the school’s responsibility); that the father was collecting Arwyn to take him home for lunch because he was concerned about him not eating and being dehydrated, but often did not bring him back after lunch; and that Arwyn had not spoken at school since commencing at Whitebridge. [50] It might fairly be observed that these behaviours of the parents appear to have been directed towards ensuring Arwyn’s wellbeing, however annoying they might have been for the school.

23. [28]

    On 20 March, Dr Kable advised Community Services that there was no more he could do, but recommended that Arwyn undergo blood tests to determine whether there might be some neurological impact on his behaviours. [51]

24. [29]

    On 23 April 2018, the father sent Community Services a lengthy email in anticipation of a planned home visit the following day, referring not only to GR’s bankruptcy and suspension from medical practice (as mentioned in the judgment below), but also to Arwyn’s controlling and extortive behaviour. [52] On 24 April, GR was at home but did not participate in the home visit by caseworkers, who were unable to speak to Arwyn, as he had barricaded himself inside his room. [53]

25. [30]

    A review at John Hunter Hospital on 22 May 2018, initiated by NSW Health (“Health”), was attended by Arwyn and both his parents, and also by Ms Emma Prowse (psychologist), Dr Nagarsekar (Clinical Director Child and Adolescent Mental Health Service), and Dr Katherine Thomson Bowe (staff specialist paediatrician). While the assessment was limited by reason of Arwyn remaining mute throughout, it was observed that Arwyn weighed 38kg and had "moved from the 50th centile in weight to height, to the 10th centile". The father thought that admission as an in-patient was appropriate, but GR felt that in-patient treatment was not required. [54] In a report dated 13 June 2018, Dr Thomson Bowe stated: [55]

26. [31]

    Arwyn was moved to Lambton High School, which was thought better suited to his needs; he commenced there on 25 May 2018. [56] He was upset at the change and demanded $100 per day from his father to attend school. The family’s financial situation was in crisis: GR was bankrupt; she was suspended from medical practice; and the mortgage of the home was in arrears. [57] As at 20 June 2018, Arwyn’s attendance rate at Lambton High was 78%. [58]

27. [32]

    On 22 June 2018, at a meeting at John Hunter Hospital between Community Services caseworkers Lisa Williamson and Kate Fitzgerald and NSW Health staff including Ms Jade Starkey (Acute Team Leader), Dr Nagarsekar, and Dr Thompson Bowe, a Health Plan was formulated, proposing a two-week admission as an in-patient to monitor Arwyn’s food and fluid intake, assess daily functioning and behaviours, review the need for medication, and develop a safety plan. This admission was to be followed by a return of Arwyn to the community, with the family to be supported by NDIS-funded services. A team of health professionals was to be formed, comprising Dr Thomson Bowe, Dr Nagarsekar, Ms Louise Jones from Consultation Liaison Psychiatry, and a nominated paediatric registrar, to provide continuity of care and daily review on weekdays. Community Services were to present the plan to the parents. The possibility of an involuntary admission if Arwyn or the parents were uncooperative was contemplated. [59]

28. [33]

    Caseworkers attended at the family home to discuss the plan. GR would not see them. Caseworkers told BB that they needed to engage because Health felt that the point had been reached when an admission was required. BB conveyed GR’s position that they should send their suggestions to her by email. [60] A summary of the health plan was subsequently emailed to GR. [61]

29. [34]

    Caseworker Lisa Williams deposed that on 27 June 2018, in a meeting at John Hunter Hospital, NSW Health staff (including Dr Nagarsekar, Dr Thomson Bowe, and Dr Murray) told Community Services caseworkers that the parents had been offered three appointments to attend with Arwyn for his assessment, the latest at 9am that same day, but none were attended; that they held significant concerns regarding Arwyn’s health and that he may need to be admitted if his weight had dropped since 22 May. [62] I can find in the record no file note of any such meeting, nor any reference to any such communications in the hospital discharge summary, which records only that Arwyn was brought in by police for s 173 examination on 28 June at 6.42pm, in circumstances where “Arwyn did not present for his outpatient appointment at 9am on 27th June to assess his weight and growth”. Dr Thomson Bowe’s much later report states only: [63]

30. [35]

    In reasons for assuming care of Arwyn on 29 June, it is stated: [64]

31. [36]

    A file note of Ms Williams of 3 July (when, as recounted below, Arwyn was presented for review after he had been discharged on 1 July), records: [65]

32. [37]

    Thus, while it seems likely that an appointment was offered at some stage and not attended, the extent to which the parents were notified of and failed to attend any appointment is quite unclear. I can find no evidence to support Ms Williams’ contention that the family were informed and failed to attend three appointments – unless that statement is intended to refer to the two appointments offered in March. [66] Nor can I find any evidence to support Ms Williams’ contention that Health staff expressed the view that this was a child protection issue. Nor can I find any evidence that it was ever agreed by either parent that Arwyn would be presented at the hospital on 27 June.

33. [38]

    On 27 June 2018, Community Services prepared and served on the father a notice under s 173 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). [67] I have not been able to find a copy of the notice itself, although there is a letter to John Hunter Hospital which refers to it, from which it may be inferred that it required Arwyn to be forthwith presented to John Hunter Hospital for medical examination to assist Community Services in determining whether he was in need of care and protection, with particular reference to signs of malnutrition and where he was placed on the growth weight scale, and his Body Mass Index (BMI). On 28 June 2018, at 2:45pm, when Arwyn had not been presented at the hospital in compliance with the notice, [68] a warrant pursuant to s 233(1)(b) of the Care Act, authorising location and removal of Arwyn from the parental responsibility of his parents and transport to the Hospital for an immediate medical assessment, was issued, and it was executed later that day. [69] The stated grounds were that the applicant (Ms Williams) had reasonable grounds to believe Arwyn was in need of medical assessment and possible treatment, and a previous s 173 notice had not been complied with.

34. [39]

    Upon arrival at the hospital on the evening of 28 June, Arwyn initially would not allow himself to be examined, and refused all foods and fluids for some 43 hours. He refused to sit down or sleep, and stood for the entirety of the first night. In the morning he allowed blood to be taken. [70] His weight was recorded as 38.9kg. The hospital dietitian noted that Arwyn was “severely malnourished and lacking essential macro and micronutrients”. [71]

35. [40]

    On 29 June 2018, Arwyn was assumed into care pursuant to s 44 of the Care Act. [72] The stated reasons included the receipt of four risk of serious harm reports since August 2012, failure to engage with support services since May 2017, exposure to domestic violence in the home (attributed to GR, which does not appear consistent with the reports referred to above), that GR had been prescribing anti-psychotic medication for Arwyn since December 2015 (which at best seems to overstate the position), that Arwyn had disclosed that his mother was trying to poison him with a drug (presumably a reference to the dissolving of Olanzapine in his water), the decline in his BMI from the 50th to the 5th centile and assessed need for assessment as an inpatient, GR’s failure to present him at the hospital as (allegedly) agreed on 26 June 2018, and subsequent non-compliance with the s 173 notice on 27 June 2018.

36. [41]

    Arwyn was then admitted to the Paediatric Intensive Care Unit (PICU), in order to manage his rehydration and calorie administration. Attempts were made to feed him, and he was sedated and restrained to enable a nasogastric tube to be inserted, which Arwyn pulled out. [73] No court authority was sought for this. The specialist medical team formed the view that Arwyn was at risk of starving himself, possibly to the point of unconsciousness, if kept in hospital, and recommended that he be discharged to his home, as soon as possible, where he would be more likely to eat with the support of his family. [74] He was accordingly discharged on 1 July 2018, weighing 38.1kg with BMI likely on the 5th percentile, and returned home. Two Community Services staff remained in the home overnight to assist, and they observed Arwyn eat and drink. GR did not stay in the home that night and was accommodated in a hotel, returning to the home on 2 July 2018. [75]

37. [42]

    Arwyn returned to John Hunter Hospital on 3 July 2018 for follow up. He was transported from school by Community Services staff, who also transported the parents to the hospital, where it was noted that Arwyn had put on weight since being discharged, though there was a concern that his ketone levels were still low, such that further blood tests would be required. [76] According to GR, he was weighed at over 40kg, and on 6 July at 40.5kg, and although I have not been able to find any corroboratory record, that would be consistent with the record that he had “put on weight since being discharged”. [77]

38. [43]

    Proceedings in the Children's Court were commenced by an initiating Application filed by the Secretary on 4 July 2018. On 5 July 2018, the Children’s Court at Broadmeadow made interim orders allocating parental responsibility for medical issues to the Minister, placing him under the supervision of the Secretary until further order, and prohibiting GR from administering medication to him. [78]

39. [44]

    Community Services conducted a home visit on 20 July 2018, following which they developed a “Safety Plan” for Arwyn, which identified dangers of GR medicating Arwyn with psychotropic medication, a lack of understanding of his health needs, and potential domestic violence between the parents, and strategies to mitigate them. Attempts to discuss the plan with the parents were unsuccessful, and GR said that she did not agree with the dangers identified in it. [79] On 23 July 2018, GR declined to have the matter referred to an Integrated Service Response team. [80] The father did not permit caseworkers to enter the home on 25 July 2018. [81] Attempts to arrange a home visit on 31 July 2018 were unsuccessful. [82] When a home visit was conducted on 3 August, the father and Arwyn but not GR were present; Arwyn appeared “slim but alert and in good health”. [83] A paediatric appointment was scheduled for Arwyn on 10 August 2018 at John Hunter Hospital; he was not presented for it. [84] Arwyn was refusing to attend school, stating that he wanted to return to Whitebridge High and would not attend Lambton High where he was enrolled. He became increasingly reclusive, with increasing paranoia of outsiders, and demands for cash compensation if anyone attended at the home. [85]

40. [45]

    On 28 August 2018, pursuant to an agreement reached between Community Services and the parents, the Children’s Court by consent made a finding that Arwyn was in need of care and protection pursuant to s 71(1)(b) of the Care Act, and final care orders placing Arwyn under the supervision of the Minister for a period of 12 months, on the basis of undertakings given by the parents to accept a referral to Redbank House or similar service recommended by the Secretary, and attend the program; engage with NDIS support service providers for Arwyn, including supporting their attendance at the home and ensuring Arwyn attend all scheduled appointments, being a speech pathologist, an occupational therapist, a behavioural specialist and a psychologist; comply with all reasonable requirements of the Department of Education with regards to Arwyn attending school; use reasonable endeavours to maintain a household free of domestic violence; and permit the Secretary or his delegates to attend the home at reasonable times. [86]

41. [46]

    GR has submitted – not for the first time – that the finding that Arwyn was in need of care and protection was unsupported by the evidence, and thus that jurisdiction under s 72 of the Care Act was not established. Section 72(1) of the Care Act relevantly provides:

42. [47]

    Section 71(1) of the Care Act states that “the Children’s Court may make a care order in relation to a child or young person if it is satisfied that the child or young person is in need of care and protection for any reason including, without limitation” the reasons set out in s 71(1)(a)-(i).

43. [48]

    With the benefit of hindsight, it can be said that the admission to hospital in June 2018 was of no benefit to Arwyn, and may well have been detrimental given his subsequent increased reclusiveness, which the parents attribute to his experience of the forced removal and hospitalisation in June. GR’s submission that Arwyn’s weight fell during his admission to hospital and improved after he was discharged and returned home appears to be correct. It is clear from the discussions between hospital staff and Community Services documented in Ms Williams’ handwritten notes of 1 July 2018, that the Health staff believed that Arwyn would eat at home, that keeping him in hospital was placing him at increased risk, and that he should be discharged home as soon as possible. [87] Ms Williams’ note of a discussion on 1 July 2018 at 12.24pm with Paula Giles, who I infer is a superior officer within Community Services, following the meeting with hospital staff, attributes to Ms Giles: [88]

44. [49]

    Notwithstanding that the admission was unsuccessful, the position when Community Services assumed care of Arwyn on 29 June was that his weight had been (at least in relative terms) in significant decline, to the point that his health was at serious risk; [89] there had been a pattern of violence (at least in large part initiated by him, against his father) in his home; his parents were not successfully addressing these difficult and challenging issues, and were not engaging effectively with support services; and the parents had not co-operated when Community Services had required that Arwyn be presented for medical examination. After his discharge, his situation – wherever he was to reside – remained precarious. He was reclusive and not attending school, and attempts to conduct home visits more often than not were unsuccessful. While the parents’ resistance to home visits must be viewed in the light of Arwyn’s predictable response – including demands for compensation which the father appears to have been unable to resist, and extending to violence – his nutrition remained marginal, and his behaviour unsatisfactory. Without intervention, regardless of whether he was at home or elsewhere, his condition and situation would likely remain unsatisfactory and potentially deteriorate. Quite apart from the agreement of the parties, the conclusion that he was in need of care and protection was not erroneous. Jurisdiction was established. [90]

45. [50]

    On 29 August 2018, the father reported increasing difficulty in managing Arwyn’s behaviour, and requested that he be placed into care. On 4 September 2018, a behavioural specialist employed by The Benevolent Society and a caseworker met with the father to discuss how she could work with the parents and Arwyn; she was not permitted to enter the home. She was unsuccessful in developing a behavioural management plan, as the parents could not agree. [91] On 14 September, the parents declined a referral to the Functioning Families Team. On 20 September, the father reported that Arwyn continued to assault him over demands for money, and he wanted to leave the home but was concerned as to who would care for Arwyn if he did. On 4 October, the father reported that Arwyn had taken and destroyed his mother’s mobile phone and laptop. Between 8 and 24 October, Community Services unsuccessfully endeavoured to arrange a home visit. On 25 October 2018, caseworkers attempted a home visit, but the parents informed them that this was not possible due to Arwyn’s likely violent reaction if he learnt of it, as he would, having installed video surveillance of the house which he monitored through his iPad and mobile. [92] GR attributes Arwyn’s elevated vigilance in this respect to a response to having previously been taken from his home pursuant to a warrant, hospitalised, sedated and fed involuntarily by nasogastric tube in June. A home visit was refused again on 13 November 2018. On 14 December, GR agreed to meet with the behavioural specialist but disagreed with Community Services’ assessment that Arwyn’s behaviours were difficult to manage. On 31 December, the father reported that he was convinced that Arwyn needed comprehensive treatment, that he had approached police about obtaining an apprehended violence order to protect himself and Arwyn from GR but the police said they did not have grounds for an application, and that Arwyn’s eating had deteriorated – he had ceased drinking water and would only drink 400ml of carrot juice daily for the past 10 days. On 17 January 2019, the father informed Community Services that he was concerned for his own safety in the home due to Arwyn’s aggression, and on 7 February he stated that he had filed an application for an apprehended violence order against GR in Belmont Local Court. [93]

46. [51]

    In early February 2019, Community Services gave further consideration to assuming Arwyn into care. Community Services had notified Health that they planned to assume Arwyn into care before 5 February 2019, when the Hospital team commenced planning. The Health team raised concerns that Arwyn would likely refuse to eat if taken into care, “but it was clear that FACS had decided that assumption of care was necessary”, and Community Services asked Health to prepare a care plan, to be used by residential care staff at Impact Youth Services and also anticipating the potential need for his admission to hospital. “Prior consent for the predicted interventions that would be required, was obtained on 21st February 2018 [sic, 2019]”. [94]

47. [52]

    On 20 February 2019, Dr Kable, who it will be recalled had been retained by GR in 2017, produced a comprehensive report at the request of Community Services, which included: [95]

48. [53]

    Dr Kable’s recommendations included: [96]

49. [54]

    On 21 February 2019, Community Services again assumed Arwyn into care, under s 44 of the Care Act, stating as the reasons that the parents had failed to comply with the undertakings of 28 August 2018. [97] Arwyn was collected from Whitebridge High School by caseworkers and placed with an out-of-home care agency, Impact Youth Services. There (as had been predicted by the Hospital and Community Services), he refused to eat (although he later told staff at John Hunter Hospital that he had been fasting since 18 February, some days before he was assumed into care), and early on 23 February 2019 he was found to have low blood sugar levels, and was admitted to John Hunter Hospital. Upon admission he weighed 35kg and had low blood sugars, and his BMI was below the fifth percentile. [98]

50. [55]

    GR arrived at the hospital and asked that Arwyn be discharged to her care; police were called to escort her from the hospital. [99] GR contends that Community Services instructed the police that there was in place a court order that she was not permitted to approach Arwyn and that she was repeatedly removed on that basis. I have searched the transcript of Ms Connelly’s cross-examination before the Children’s Court, and GR’s submissions of 8 August 2019 (to which GR referred when asked to identify the evidence that Ms Connelly had given any such instruction), [100] and can find no such evidence, but only GR’s assertion to that effect. The position appears to be that Community Services relied on their care responsibility under s 49 to determine that there should be no parental contact at that time.

51. [56]

    Arwyn is reported initially to have consented to the insertion of a nasogastric tube with nasal spray anaesthesia, and then nitrous oxide, but both of these were unsuccessful, which presumably means that he removed the tube, which is not indicative of consent. Ultimately, “senior staff” sedated him with intramuscular ketamine and propofol in order to insert the nasogastric tube. It was observed that “Arwyn was refusing to eat in a place he doesn’t want to be”. He was found to be profoundly ketonic, and was transferred to the PICU where he was intubated, ventilated and sedated from 23 to 27 February 2019. (No court approval was sought for this, reliance being placed on the consent of Community Services). Upon discharge from PICU he returned to the ward, where Arwyn repeatedly indicated that he wanted his parents to visit; hospital staff said that his father could visit, for an hour. On 3 March, he weighed 37.5kg. Between 4 and 12 March 2019, sedatives were used to assist with feeds. He not infrequently removed the nasogastric tube and pushed staff away to prevent them inserting it, until sedated. [101]

52. [57]

    On 26 February 2019, the Secretary filed in the Children's Court an application, pursuant to s 90 of the Care Act, for rescission of the previous care orders of 28 August 2018, upon grounds that, in the intervening seven months: the parents had not engaged in a meaningful way with the NDIS, even refusing to permit NDIS staff to attend the home and assess Arwyn; the parents had failed to maintain a household free of violence, had been unable to manage Arwyn’s outbursts and had failed to ensure that he received adequate nutrition; the parents had prevented Community Services staff from entering the home to sight the boy and observe the home, on some seven occasions; and the father had on a number of occasions asked Community Services to remove the boy from the home, due to his behaviour, including his violence and unreasonable demands for money. It was also noted that GR had been suspended from medical practice by the New South Wales Civil and Administrative Tribunal. [102] (In fact, although her having administered inappropriate psychotropic medications to Arwyn was one of multiple grounds relied on, it was not, as stated in the judgments below, the principal reason). On 27 February 2019, the Children’s Court at Broadmeadow made an interim order allocating all aspects of parental responsibility for Arwyn to the Minister. [103] On 12 April 2019, an order was made under s 90(2) of the Care Act giving leave to the Secretary to proceed in relation to the application to rescind the previous care orders made on 28 August 2018 and to seek other care orders, continuing the interim order in the meantime. [104]

53. [58]

    GR submitted that there was no authority for a decision to assume care responsibility or consent to medical treatment, as under the extant Children’s Court orders the Minister did not have parental responsibility. However, the fact that by those orders the Minister did not have parental responsibility does not preclude the exercise by the Secretary of the power under s 44 to assume care of a child if the conditions for its exercise are satisfied, and upon exercise of the power the Secretary has, by s 49, care responsibility for the child, which includes the powers under s 157 to consent to medical treatment.

54. [59]

    GR also submitted that the “Consent for medical treatment” was in fact signed by Ms Williams on 18 February 2019, before Arwyn had been assumed into care, and was invalid because it predated the s 44 certificate of 21 February. However, when challenged to produce evidence of this in the Children’s Court, GR was unable to do so, and no such evidence has been identified in the voluminous appeal record. Moreover, even if it were signed pre-emptively before the assumption of care, it is not clear that that would invalidate it once care had been assumed under s 44. GR’s submission that Community Services “ordered” the Hospital to force feed Arwyn by induced comas and restraints if he refused to eat is also not correct. A request to prepare a plan for the eventuality that he might refuse to eat is not an order to administer such treatment.

55. [60]

    GR submitted that the assumption of care of Arwyn in February 2019 was unwarranted and ill-conceived, and resulted in Arwyn being subjected to extreme medical treatments over an extensive period, involving risks of serious complications some of which materialised. In my view, the reports of Arwyn’s continuing behaviour and restricted eating, and the parents’ lack of meaningful engagement with support services and refusal of home visits in breach of the undertakings they had earlier given to the Children’s Court, warranted consideration of his resumption into care in February 2019. But there was a countervailing risk – which was anticipated and indeed eventuated – that Arwyn might refuse to eat at all if removed from his home, and as a result require extraordinary interventions. It is clear that Community Services were planning to assume care as early as 5 February 2019, 16 days before it was enacted on 21 February, and were well aware that if they did so, it was a likely consequence that Arwyn would fast and require admission to hospital. As has been noted, the Health team raised concerns that Arwyn would likely refuse to eat if taken into care, “but it was clear that FACS had decided that assumption of care was necessary”. [105] At least with the benefit of hindsight, views might differ as to whether the course of hospitalisation and extreme treatments that would follow Arwyn’s assumption into care in February 2019 was preferable to leaving him with his parents, in a situation which, while plainly unsatisfactory, was perhaps less traumatic than what was to follow.

56. [61]

    In early March 2019, Dr Thomson Bowe, staff specialist paediatrician at John Hunter Hospital, observed that even in Arwyn’s preferred location (his parents’ home) he had been eating insufficiently, and that if discharged back home it was to be anticipated that he would continue to become more malnourished, and at an increasing risk of complications including death; that if he were discharged to Impact Youth Services – which was not his preferred destination – he would again fast and require readmission; and that achieving regular eating habits would take a prolonged period (implicitly, remaining in hospital). [106] On 10 March 2019, Dr Nagarsekar, Arwyn’s treating psychiatrist at John Hunter Hospital, wrote to Associate Professor Madden, Director of the Eating Disorders Network at Sydney Children’s Hospital (SCH), requesting that he be transferred to SCH “for further assessment and management for severe malnutrition and low weight associated with restricted diet on a background of Autism Spectrum Disorder and Child protection issues”, stating that Arwyn had been admitted “as he completely stopped eating and drinking after being placed by Community Services with Out of Home care agency, Impact”, and continuing: [107]

57. [62]

    Arwyn was transferred to Sydney Children’s Hospital at Randwick (SCH-R). The Secretary was rightly concerned that the powers of the Minister under the order made in the Children's Court may not be sufficient to permit the Secretary to consent to Arwyn being subjected to the restraints and “extraordinary medical treatment” proposed, and invoked the parens patriae jurisdiction of the Court. On 15 March 2019, Pembroke J made ex parte orders (which were subsequently extended by Kunc J) [108] permitting the Secretary to authorise procedures whereby Arwyn would be fed artificially under a high level of sedation in a medically induced coma if, on medical advice, it was thought appropriate to do so. Arwyn was placed into a medically induced coma and transported from Newcastle to SCH-R. He was heavily sedated with multiple agents until 24 March, to enable feeding. [109] According to Associate Professor Madden, the purpose of this course of treatment was to avoid the trauma of being restrained and sedated several times daily for force feeding. [110] In ICU he encountered a number of serious medical complications: refeeding syndrome (including hypokalaemia and hypomagnesaemia), fevers (apparently associated with an infection), gastroparesis, and pericardial effusion. [111] On 29 March he was transferred from the ICU to the Saunders (child psychiatry) Unit, where he was treated as a “voluntary patient” under the consent of Community Services as guardian. [112] There he was observed to have a brief seizure. [113] An x-ray showed his bone age was significantly advanced at 16-17 years (chronological age 14) with the consequence that he was unlikely to grow any further. [114] In the Saunders Unit, given the ability to pick his own foods from a list of preferred foods, and with encouragement, he was “able to eat sustainably”. [115] Dr Spencer reported that Arwyn was not suffering from a major mood or psychotic illness, and as such the role of inpatient admission had been mainly to assist him with his eating behaviours and to gain weight; that the risk of harm to Arwyn was from insufficient dietary intake, and he had not expressed suicidal intent and there were no other forms of deliberate self-harm; and that he had not displayed any aggressive or violent behaviour and was not deemed a risk to others. Dr Spencer expressed the view that Arwyn’s continued meal support might henceforth be undertaken in the community in a less restricted environment than an acute adolescent mental health inpatient unit. [116]

58. [63]

    On 15 May 2019, Kunc J discharged, with effect on and from 16 May 2019, the extraordinary medical treatment orders, ending the curial authority for those procedures. [117] Arwyn was discharged from the Saunders Ward on 15 May 2019, weighing 44.8kg. [118]

59. [64]

    The treatments to which Arwyn was subjected during this admission carried considerable risks, and as appears from the account set out above, some of those risks materialised. However, GR’s submission that the experts did not support the use of induced comas for involuntary feeding overstates the evidence. It is true that in evidence to the Children’s Court, Dr Spencer – not a specialist in eating disorders, but a child behavioural psychiatrist in whose care Arwyn was when in the Saunders Unit – said she had not come across a child being placed in an induced coma for force feeding on many occasions, and that most doctors would not want to go down that line. When questioned by Johnstone ChCP, she maintained that she would not want to take that course and the majority of doctors would not want to do so, and when pressed as to the position if the child were not eating orally and pulling out the nasogastric tube, she still did not embrace with much enthusiasm the suggestion that an induced coma was appropriate. [119] But Dr Teo said only that Arwyn was the first such case he had encountered in his six and a half years at John Hunter Hospital, although he had managed another such case from Westmead. [120] Dr Numa told Kunc J that while he would not say that such treatment never happens with anorexia patients, it was “very very uncommon”, and in his own ICU he had never had an anorexic patient admitted for such therapy; however, he did not say that it was inappropriate in Arwyn’s circumstances, in which he was indeed supervising it; to the contrary, when asked by Kunc J what would have been his response if asked by one of the parents “Do you think what is happening to my child is the best way for him?”, he answered: [121]

60. [65]

    Dr Kohn, a Court appointed independent medical advocate, reported that there was an established behaviour pattern of food refusal by Arwyn in situations of conflict within family relationships, and that his treatment at the Saunders Unit was adequate and appropriate: “[He] is receiving effective treatment … to rehabilitate his physical health and eating behaviours. The robustness of his progress will be tested when he is challenged by arrangements for discharge”. [122]

61. [66]

    Accordingly I cannot accept that the weight of medical opinion was that these extreme treatments were not, in the extreme circumstances, appropriate. And in light of this consistent body of medical evidence, I do not regard the unique views of Dr Lucire, which Sackar J appears to have rejected, as commanding acceptance. Nor can I accept GR’s submission that SCH-R was in effect compelled to treat Arwyn by higher authority over ethical objection. When regard is had to the whole of Dr Numa’s evidence, as distinct from the selective extracts contained in GR’s submissions, it is clear that, while he said that there was a discussion about ethics, his initial refusal to admit Arwyn was because he was a patient of John Hunter and he thought the situation was better managed closer to home than dislocating the family to Sydney. He understood the justification for the transfer to SCH-R partly to be resources (John Hunter’s PICU had only four beds whereas SCH-R had 17), and partly that John Hunter felt that the eating problem would be better dealt with at SCH; they had exhausted their therapeutic options without success, and wanted to engage further expertise.

62. [67]

    Upon discharge, Arwyn was to be transferred to residential care premises at Medowie House, but in the course of the transfer he became agitated, undid his seatbelt, and attempted to stop the driver and exit the vehicle. The caseworker in the car had to restrain him and was injured in the process. It took some 4 hours before Arwyn could be calmed down and the journey completed. [123]

63. [68]

    Upon arrival at Medowie House, Arwyn refused to eat. [124] On 17 May 2019, he was brought to the John Hunter Hospital Emergency Department “due to persistent fasting”; his weight on admission was 43.9kg. Written consent for chemical restraint and physical restraint and insertion of intravenous cannula and nasogastric tube was given by Community Services; no court authority was sought. He was admitted to the Nexus (Child and Adolescent Psychiatry) Ward, where his eating was sporadic and well below the goal of 2500 calories per day, “despite encouragement”. On 25 May he became medically unstable with low blood sugar levels and mild dehydration. A nasogastric tube was inserted, but he pulled it out before fluid could be administered. He was transferred to the J2 Medical Ward. Initially he ate and drank in preference to insertion of an intravenous cannula and intravenous fluids, but his eating continued to be sporadic and insufficient. Over the weekend of 1 June and 2 June 2019, Arwyn completely stopped eating, and drank only a few hundred millilitres of fluid each day. He became more withdrawn, and refused to respond to the Impact and Health staff members. He was treated for dehydration and borderline low blood sugar levels with insertion of an intravenous cannula and intravenous fluids on 3 June and 5 June. On 6 June, and again on 7 June 2019, Arwyn refused oral intake. He allowed nasogastric insertion, but proceeded to remove it before a full feed could be completed. Given his dehydration, one litre of intravenous fluid was administered. By 7 June 2019, his weight had fallen to 39.9kg. On 7 June 2019, a teleconference between treating clinicians, Dr Jessica Poon (Paediatrician, SCH Saunders Ward) and Associate Professor Sloane Madden and several staff of the SCH Westmead (SCH-W) Eating Disorders team discussed options for Arwyn’s treatment, including escalation of care locally and whether Arwyn might be able to be transferred back to Sydney. [125]

64. [69]

    GR was at first permitted to visit him daily in hospital, under supervision. On 6 June 2019, Dr Nagarsekar and Dr Thomson Bowe recommended interim cessation of parental visits, on the basis that GR’s behaviours and speech during contact were felt to be undermining the therapeutic relationship between Arwyn and the Health and Impact teams. [126] Between 7 and 10 June, Arwyn consumed one meal per day and nasogastric feeds were not initiated. [127] Community Services allege, and the Courts below appear to have accepted, that on 8 June 2019, GR arrived at John Hunter Hospital and attempted to attend Arwyn’s bedroom by concealing herself with a blanket and walking past the nursing staff; she was noticed by the nursing staff and escorted from the ward. [128] GR says that she did not conceal herself, and simply brought a replacement quilt for Arwyn.

65. [70]

    On 11 June 2019, Arwyn was told that he would need to increase his eating. He absconded from the hospital during a handover between Impact staff. [129] He proceeded 100 metres up Lookout Road from John Hunter Hospital. An ambulance and police attended the location, and he was escorted back to the hospital by ambulance. [130] On 12 June 2019, Arwyn quickly jumped out of his bed and walked in the direction of the exit. When he arrived at the exit, he ran to GR, who, at the time, was being told to leave the hospital. GR kissed and hugged Arwyn, and gave him some children’s books. Community Services allege, and the Courts below appear to have accepted, that when she was again asked to leave, she said to Mr Bevan, “You are a child abusing molester, step away or I will call the police and have you charged with battery and assault”, and upon again being asked to leave, GR ran out the emergency doors and down the stairs. [131]

66. [71]

    From 11 June, night-time nasogastric feeds were commenced. “The least restrictive process is offered, from voluntary nasogastric insertion and nasogastric sedation, through to intramuscular sedation and mechanical restraint”. In that context it is said that he “complied” with night-time nasogastric feeds. [132]

67. [72]

    On 13 June 2019, GR again attended John Hunter Hospital in an attempt to see Arwyn on an unscheduled basis, and was asked to leave. [133] On 15 June 2019, GR arrived at the door of Arwyn’s room, saying that she had brought him books and bananas. She was told to leave, but did not do so and said to Arwyn words to the effect of “Mum goes to court this week and she will have you back ... the court will give you back.” There was an altercation between GR and Impact staff, who closed – she says slammed – the door on her. [134]

68. [73]

    On 17 June 2019, medical stability having been attained, Arwyn was transferred from the J2 Ward back to the Nexus Unit. He remained there until 19 August. He continued to receive night-time nasogastric feeds and did not require mechanical restraint. By 20 June, his weight had increased to 43.2kg. [135]

69. [74]

    The Children’s Court proceedings were transferred to the Parramatta Children’s Court, for hearing before the President in November 2019. On 24 June 2019, Lindsay J in the Equity Division summarily dismissed GR’s application for the return of Arwyn to her care in exercise of the parens patriae jurisdiction. [136] However, the Court of Appeal allowed GR’s appeal on 18 July 2019. [137] On 16 August 2019, Kunc J found there were exceptional circumstances to warrant the hearing of GR’s application, namely that an important point was about to be reached in Arwyn’s treatment (being his pending discharge on 19 August 2019). His Honour spoke face to face with Arwyn at the hospital who said that he wanted to go home; he wanted to be cared for by his mother; he was happy to have the carers and other professionals who had been involved in his care to date continue to be involved in looking after him once he went home; and he understood the importance of continuing to eat normally and said that he would do his best to do so. [138] His Honour declined GR’s application that, in the parens patriae jurisdiction, he revoke the orders of the Children’s Court and restore Arwyn forthwith into her care upon discharge from hospital, to reside at home, for reasons that included that there remained serious questions as to her capacity to care for the child, and in particular her ability to ensure he ate adequately, maintained minimum standards of hygiene, and attended school, and as to whether she would cooperate with medical and other professionals involved in his care, [139] but made a number of further orders, which required, relevantly, that the Secretary:

70. [75]

    His Honour summarised the intent of his judgment as follows:

71. [76]

    Thus what his Honour sought to do was, recognising the approaching hearing in the Children's Court, to make orders that would give the parents a greater involvement and sense of involvement with the child in the meantime, but also to allow the matter to progress to a full final hearing and determination by the specialist court entrusted primarily with these matters.

72. [77]

    On 19 August 2019, Arwyn was discharged from John Hunter Hospital to his placement, cared for by Impact care workers. [140]

73. [78]

    However, on 21 August he was re-admitted to John Hunter Hospital, due to insufficient calorie intake after his discharge. [141] Chemical and physical restraint was used on two occasions “to attempt to ensure NG compliance”. On 23 August 2019, a decision was made to proceed with what was described as a “non-compliance feed”, in which “[Arwyn] was held down, mechanical restraints were used on his wrists and the NG tube was inserted”, despite which he managed to dislodge the tube before a full feed could be completed. Subsequently he was sedated to enable insertion of the nasogastric tube, but again he removed it. [142] (No court authority was sought for this treatment). Arwyn’s weight had declined by 5kg since 18 August. [143] Dr Thomson Bowe stated that it was not safe to discharge Arwyn from hospital as at 30 August 2019. [144] On 1 September he was transferred to the PICU for persistent hypoglycaemia, and intubated and sedated for the purpose of feeding by nasogastric tube, with 18 hour feeds under a high level of sedation. (No court authority was sought for this treatment). Complications due to the high level of sedation included that his bowel temporarily ceased to work, leading to feeds remaining in the stomach instead of progressing through the bowel; ventilation-acquired pneumonia; and a brief drop in blood pressure. [145] He was extubated on 3 September. He received antibiotics to treat his arterial line blood cultures which grew Staph aureus, and pneumonia, with which he was compliant. [146] On 6 September he was transferred to the J2 Ward, [147] and on 9 September to the Nexus Unit. [148] On 17 September he was transferred back to the J2 Ward to encourage him to eat, as he had refused food since an incident on 14 September, when GR attended a scheduled contact visit by the father, and when she was asked to leave the situation deteriorated, the contact visit was terminated and police were called to escort the mother from the hospital. [149] He continued to refuse all food. Dr Bala explained the risks to him, highlighting the concerns from the last occasion intubation was implemented – lung infection, feeds not being absorbed, high resistance to sedation, bowel not working, and low blood pressure – and that in very serious cases the outcome could be death. Arwyn was described as “attentive”, and he wrote “It takes weeks for people to die from not eating”. Arwyn told the caseworker that he was no longer scared of eating, but did not eat when he was sad; when asked about “sad”, he wrote “home”. It is clear from the caseworker’s file note that notwithstanding the caseworker’s attempts to portray GR to him as the problem, Arwyn maintained a wish to be at home, with her. [150]

74. [79]

    On 24 October 2019, the Secretary filed a Care Plan in the Children's Court, which included an assessment that there was no realistic possibility of restoration of Arwyn to the parents or either of them. The Secretary’s position was summarised by Ms Anne-Marie Connelly, the Manager Client Services with primary responsibility for Arwyn, as follows: [151]

75. [80]

    On 28 October 2019, following a prolonged period of not eating while in the J2 Ward at John Hunter Hospital, Arwyn’s treating doctors, Dr Thomson Bowe and Dr Nagarsekar, told him that it was becoming difficult to keep him alive, and that his hypoglycaemia gave rise to the risk of seizures, coma, brain damage and death. Arwyn said that he did not want to die, but wanted to go home; that he had eaten during two periods in the last eight months, but that had not got him home. [152] On 30 October 2019, he was sedated and administered IV fluids and dextrose, but removed the intravenous cannula from his left arm; the following day the cannula in his right arm was removed. [153] These procedures were performed under the consent of Community Services; no court authority was sought.

76. [81]

    NSW Health decided to transfer Arwyn to the Eating Disorders Unit at SCH-W, as a more appropriate place for his treatment. He was transported there on 1 November 2019. [154] The parents were then notified – but only after the transfer had taken place – and were informed that contact could not occur until assessments had been undertaken. [155]

77. [82]

    During August, September and October, GR repeatedly sought unsuccessfully to have Arwyn restored to her care as a matter of urgency. [156] On 7 November 2019, the Court of Appeal heard GR’s application for leave to appeal from the decisions refusing to do so. Leave to appeal was refused, principally by reason of the imminence of the Children’s Court hearing due to commence the following week. [157] In a judgment with which Emmett AJA agreed, I observed: [158]

78. [83]

    On the evening of 7 November 2019, GR presented unannounced in Arwyn’s room. She was asked to leave as this was not an approved contact. GR replied that she had come directly from the Supreme Court, which was a higher authority than Community Services and had permitted her to see Arwyn. [159] GR refused to leave and produced sandwiches and packets of chips, which she placed on Arwyn’s bed. Arwyn asked GR to “stay with me”. The nurse told GR that security would be called if she did not leave, and she then left. Arwyn was said to appear distressed after GR left. [160]

79. [84]

    As at 8 November 2019, Arwyn’s weight was 41.1kg. A multistakeholder teleconference to discuss Arwyn’s progress and treatment plan, involving Community Services, Impact staff, and SCH-W health care personnel, agreed that parental visits should resume, and that Arwyn required physiotherapy, occupational therapy, and psychological assessment. It was also planned that he be involved in schooling. [161] Contact visits by the mother were seen as disruptive, at least so far as hospital and Community Services supervising staff were concerned. [162] It seems that part of the objection was that GR appeared to be gathering evidence. [163]

80. [85]

    Following a hearing on 29 November 2019, Kunc J, in a judgment delivered on 3 December 2019, said: [164]

81. [86]

    His Honour summarised a joint experts’ report as to Arwyn’s then circumstances, as follows: [165]

82. [87]

    His Honour made the following observations of a proposed treatment plan developed by the experts: [166]

83. [88]

    His Honour ordered that, until further order of the Court or the Children’s Court, the Minister and the Secretary consent to and, to the extent necessary, cooperate in the implementation of the proposed treatment plan, which envisaged the inclusion of the parents in feeding Arwyn, and also confirmed his Honour’s earlier orders of 16 August 2019 that the Secretary: [167]

84. [89]

    Under the treatment plan, of which Community Services had not been an enthusiastic supporter, by 9 December 2019, Arwyn’s weight increased to 45.3kg and his eating was reported to be continuing to improve. [168] He still chose to communicate non-verbally, but was walking around the hospital and going outside, and was said to be aware that both he and his parents needed to do things in order for him to return to their care. [169] On 30 December he was “doing well, eating regularly, showering every second day” and “using sign language to sign ‘when is home’”. [170] However on 1 January 2020 he reduced his eating and drinking. While caseworker Ms Connelly hypothesises that this was associated with the cancellation of arrangements to view the New Year’s Eve fireworks, an equally available explanation is that it was associated with the absence of contact after 25 December, GR’s scheduled contact on 27 December having been cancelled due to her behaviour on 25 December. On 2 January 2020, Arwyn was described as compliant with Olanzapine, which was used as a sedative to enable a nasogastric feed. He resumed eating on the afternoon of 2 January, when reminded of impending visits by his grandparents and father and the imminent arrival of his mother. [171]

The judgment of the Children’s Court

1. [90]

   In a judgment delivered on 27 February 2020, Johnstone ChCP found that the parents had demonstrated a total inability to care safely for the child and lacked insight into his needs or medical condition, and for those and other reasons there was no realistic prospect of restoration of Arwyn to his parents in a reasonable time. His Honour directed Community Services to file an Amended Care Plan addressing permanency planning, incorporating the substance of the orders made by Kunc J, including the provisions of the Proposed Treatment Plan. In a further judgment delivered on 3 April 2020, his Honour approved the Amended Care Plan and made a final order, pursuant to s 79(1)(b) of the Care Act, allocating all aspects of parental responsibility for Arwyn to the Minister until Arwyn attains 18 years of age. His Honour favoured restricting the mother’s capacity to interact with Arwyn so as to disable her from continuing to damage his treatment, but was unable to do so by reason of subsisting orders of the Supreme Court.

2. [91]

   Thereafter, Arwyn remained a patient of SCH-W under the care of Associate Professor Sloane Madden. On 14 April 2020, as contemplated in the Care Plan, he was discharged from SCH-W to his long-term placement, managed by Impact, pursuant to which he took up residence in a house approximately 20 minutes’ drive from SCH-W, where he is the only child resident, and he has a carer in the house 24 hours a day. Following his discharge, Arwyn was an outpatient of SCH-W under the care of Associate Professor Madden, and his health was regularly monitored by SCH-W by video link. [172]

3. [92]

   Arwyn refused to eat on 20, 21 and 22 April 2020. On 22 April, he was assessed by Dr Jack Luxford (of the Eating Disorders Unit at SCH-W) via video link, and appeared lethargic and weakened; [173] he was thereupon re-admitted to SCH-W. [174] During this admission, though his eating fluctuated, he did not require restraint or nasogastric feeding. On 4 May he weighed 39.1kg. [175] On 11 May, he weighed 39.5kg. [176] On 13 May 2020, with the consent of Community Services, and the approval of the SCH Drug Committee, Arwyn was first administered depot Olanzapine (210mg), a long-acting injectable form of this medication, by his treating team at SCH-W. [177] Thereafter he continued to eat, and by 15 May his weight had increased to 40.2kg. [178] By 18 May he had attained 41.4kg. [179] On 25 May 2020, after a second injection of long acting depot Olanzapine (210mg), Arwyn was discharged to his placement. [180]

4. [93]

   However, on 26 May 2020, after he had refused to eat or drink for 36 hours, and with low blood sugar levels, Arwyn was re-admitted to SCH-W. On 1 June he weighed 43.5kg, a gain of 4kg since the first administration of depot Olanzapine. [181] That day he was again discharged from SCH-W, to his placement, where he has since remained. [182] By 15 June 2020, he weighed 44.3kg. [183]

5. [94]

   On 25 June 2020, Arwyn was administered a further 210mg dose of Olanzapine via intramuscular injection. [184] (Although at one point Associate Professor Madden referred to 410mg, I would accept that this was a slip and that 210mg was injected, as had been the case on previous occasions). He was scheduled to receive a fourth dose of Olanzapine by depot injection on 23 July 2020, but this did not occur as he refused to be transported to the hospital. He has not received any Olanzapine since. By 27 July 2020, he weighed 47.7kg, his eating had improved, and there had been significant functional improvement as an outpatient with improving quality of life. [185]

6. [95]

   It is fair to say that the use of depot Olanzapine was unorthodox, especially in a child. However, its use was approved by the SCH Drugs Committee, and it appears to have been successful. Associate Professor Madden gave evidence that the treatment was explained to Arwyn, who was compliant. This is supported by the fact that the consent of Community Services, which was given, was expressly limited to the circumstance that Arwyn was agreeable, and specifically excluded the use of restraint if he was not. [186] Contrary to GR’s submission, I do not consider that Dr Shanker-Butler’s email of 13 May 2020 [187] – which states that no restraint was needed, but that Arwyn wanted to hold her hand and that of one of the nurses while the medication was given – is indicative that he did not consent.

The appeal to the Equity Division

1. [96]

   The appeal to the Equity Division was by way of hearing de novo. Sackar J had regard to the evidence adduced before the Children’s Court, and additional evidence adduced on the appeal.

2. [97]

   As at 27 May 2021, shortly prior to commencement of the hearing of the appeal in the Equity Division, Arwyn remained in a medically stable condition; had not required any extraordinary medical treatment, or sedation combined with intubation for the purposes of re-feeding, since his transfer to SCH-W on 1 November 2019; had not required any intravenous fluids or nasogastric feeding since 14 February 2020; and since 25 June 2020, when administered his final dose of depot Olanzapine, had not had any medication, with the exception of antibiotics for an ingrown toenail on 9 April 2021. [188]

3. [98]

   However, in or about April 2021, Arwyn decided to adopt a vegan diet. While he continued to eat, he lost weight. At the end of April he weighed 47.6kg, and on 31 May 2021 his weight had fallen to 46.95kg. On 1 July he weighed 44.6kg; he was said to be eating two meals daily, all vegan. By 12 July, his weight had fallen to 43.75kg which, as GR emphasised, was well before the fifth centile – the lowest in relative terms that it had ever been. Professor Einfeld thought that this was not unrelated to the hearing of the appeal, and was a protest by which he hoped to convey to the Court his desperation to get back to his “world’ at home. [189] However, while at first sight such a weight loss was of great concern, there is no evidence that it was associated with a refusal to eat: Arwyn was continuing to eat, but was choosing to eat a vegan diet which offered fewer calories. Associate Professor Madden saw him on 15 July 2021, when he weighed 45.1kg, and stated that he was eating three vegan meals daily, and was medically stable. [190]

4. [99]

   In the judgment below, delivered on 27 August 2021, Sackar J dismissed GR’s appeal and confirmed the orders of the Children Court. Essentially, his Honour found that there was no doubt that Arwyn was in need of care from multiple professionals; that he had made significant progress since 2019 due to the effort of health professionals and others; that he no longer wished to return home and would like to live independently, but that was not a practical option; that his best future prospects were to remain in the placement in which he was; that GR lacked insight into his condition and needs; and that it would be deleterious to his mental and physical health to place him with either or both of his parents, who were separated. His Honour found that all treatments administered had been appropriate, proportionate and entirely motivated by attempting to keep Arwyn alive or getting him better, and that while there was no doubt that some treatments were extreme, so was his condition; and while some were distressful for Arwyn, they were necessary. His Honour accepted the view of Associate Professor Madden that the recent decline in weight was not cause for concern.

5. [100]

   The finding that Arwyn no longer wished to return home was based not only on the evidence of Associate Professor Madden, but also that of Dr Fairley who said that when he and Professor Einfeld had seen Arwyn, they asked him repeatedly what he wanted, and it was to return to a place rather than a person. The finding that he would be best cared for in his current placement took into account that “Not one expert familiar with the case and who has ever seen [Arwyn] recommends that he be returned to the care of GR with or without assistance”. [191] These included not only Associate Professor Madden, Dr Milch and Dr Fairley but also Professor Einfeld, who had at various earlier stages expressed the opinion that it was perhaps time to try sending him home, but now opined that his best chance of recovery was to stay where he was. Even Dr Lucire, who was qualified by GR, endeavoured to explain how difficult it would be for GR to care for Arwyn.

6. [101]

   His Honour therefore dismissed the appeal, so that all aspects of parental responsibility for Arwyn remain allocated to the Minister until he attains 18 years of age.

The application for leave to appeal

1. [102]

   GR seeks leave to appeal to this Court from the order of Sackar J dismissing the appeal from the orders of the Children’s Court.

2. [103]

   On 20 September 2021, Simpson AJA expedited the hearing of the application for leave to appeal, for concurrent hearing with the appeal if leave be granted. [192] Pursuant to that direction, the hearing was fixed for 1 and 2 December 2021. [193] That hearing was vacated as the parties were unable to be ready for it, [194] and after disposal of several interlocutory applications, [195] the concurrent hearing was ultimately again fixed for hearing on 6 April 2022. The Secretary prepared appeal books, amounting to some 40 lever arch folders.

3. [104]

   When the matter came before the Court for hearing on 6 April 2022, GR applied for an adjournment, for the reason that counsel whom she had expected to appear for her had returned the brief. The hearing was adjourned to a date to be fixed, and the proceedings were stood over for directions, with the intention that the Court make directions and fix a date for hearing in consultation with her counsel. However, at a directions hearing on 6 May 2022, GR appeared self-represented. With the intention of clarifying the real issues and making more manageable the 40 or so volumes with which the Court had been provided, I made directions that:

4. [105]

   GR provided an amended draft notice of appeal, and draft subpoenas. On 25 May 2022, GR again appearing self-represented, I made directions that:

5. [106]

   Although GR provided revised written submissions, they were not signed by counsel, and her list of documents was in somewhat generic terms. As a result, the intent of clarifying the real issues and making more manageable the appeal record was not achieved. Shortly before the hearing, GR informed the Court that counsel was not prepared to appear and she would appear self-represented. It was in those circumstances that the hearing proceeded on 14 June 2022.

The review motion

1. [107]

   GR’s motion filed on 9 February 2022 sought, in substance, review of the orders of Simpson AJA made on 10 December 2021, and of the costs order made against GR on 5 November 2021, and in substitution for her Honour’s orders, leave to adduce new evidence on the appeal; leave to issue subpoenas; and orders in the nature of stays of the existing care orders and urgent relief in the parental jurisdiction of the Court. However, GR acknowledged that except for questions of costs, the relief claimed was rendered otiose by the subsequent directions and orders made in respect of subpoenas, [196] and by the hearing of the application for leave, [197] so that the motion was pressed only insofar as it sought review of the costs orders.

2. [108]

   In a judgment delivered on 5 November 2021, [198] Simpson AJA ordered that a number of subpoenas which had been issued at the request of GR be set aside, and dismissed with costs an application by GR in the nature of a stay of the care orders, and alternatively for contact with Arwyn. In a judgment delivered on 10 December 2021, [199] her Honour dismissed with costs a motion by GR for various relief, including the relief which had previously been refused on 5 November 2021. In the judgment of 5 November, her Honour indicated that the evidence adduced by GR was insufficient to justify interfering on an interim basis with the care orders. In the judgment of 10 December, her Honour said that no new evidence had been adduced.

3. [109]

   It would have required a most compelling case for a single Judge of Appeal on an interim basis to stay or otherwise interfere with the operation of the existing care orders in a way which would, for only a short time pending hearing of the application for leave to appeal, reverse the arrangements for Arwyn’s care which had been in effect, practically, since February 2019. No appellable error is apparent in Simpson AJA’s decision to refuse to interfere with the extant orders, or in making the consequential costs order adverse to GR.

4. [110]

   It follows that the costs orders made by Simpson AJA against GR on 5 November 2021 and on 10 December 2021 should not be disturbed. GR’s notice of motion filed on 9 February 2022 should be dismissed.

Leave to appeal is required

1. [111]

   Supreme Court Act 1970 (NSW), s 101(r), has the effect that an appeal from a final judgment of the Court which does not involve a matter at issue amounting to or of the value of at least $100,000 lies only by leave. Any appeal which is not about money or property does not satisfy that condition, and requires leave to appeal. It has been accepted that this means that leave is required for an appeal from an order in respect of the guardianship, custody or welfare of a child, whether under statute or in the Court’s inherent parental jurisdiction. [200]

2. [112]

   GR submitted that leave to appeal was not required, by reason of the exception in Supreme Court Act 1970 (NSW), s 101(3), which has the effect that leave is not required for an appeal from a judgment or order “made on an application for a writ of habeas corpus … or to an order for the committal or arrest of any person”. That submission was misconceived: there was no application for a writ of habeas corpus, and the order allocating parental responsibility to the Minister is not an order for committal or arrest of the kind contemplated by s 101(3). Leave to appeal is therefore required.

3. [113]

   At least in the case of a first appeal from an order made at first instance in respect of the guardianship, custody or welfare of a child, whether under statute or in the Court’s inherent parental jurisdiction, leave would ordinarily be granted fairly readily, because of the finality of the order and its impact on the status and interests of the child and the parents. However, it is relevant that this is not a first appeal: there has been a full hearing before the Children’s Court, and an appeal by way of hearing de novo before Sackar J, in which the same conclusions have been reached.

4. [114]

   An important consideration on an application for leave to appeal is whether there is a real prospect that this Court would make an order different from that under appeal. As Arwyn will attain 18 years of age on 27 October 2022, the order under appeal, allocating parental responsibility to the Minister, will expire in less than four months. Whatever order this Court makes, it will cease to have effect at that time. The arrangements for Arwyn’s care thereafter, when he will be an adult, will depend not on the outcome of these proceedings, but on an application presently pending in the Guardianship Division of NCAT. Thus in this case, on the question of leave to appeal, a very important consideration is whether there is a real prospect that it would disturb the current arrangements for Arwyn’s care during the intervening period. Before it would do so, it would be necessary not only to find some error vitiating the judgment below, but also to decide upon rehearing that a different order should be made, which would operate only for a period of less than four months.

Arguable case of error?

1. [115]

   As I do not regard the question of whether there is an arguable case of error as dispositive of this application, I do not address it comprehensively. However, I will endeavour to address GR’s essential arguments that the finding that the treatment administered to Arwyn was appropriate was erroneous; that his condition was aggravated not ameliorated by being placed in Community Services’ care; and that the extreme treatments were necessitated by his refusing to eat in protest at being in Community Services’ care and not in his home with his parents. To some extent, these issues have already been considered. [201]

2. [116]

   GR’s submission that the necessity for Arwyn’s admissions arose from his refusal to eat in Community Services’ care after he had been removed from his home, and the necessity for more extreme treatments that followed was occasioned by his refusal to eat in hospital where he did not want to be, is not without force. Each time Arwyn was assumed into care, he refused to eat, his weight deteriorated and his condition became medically unstable. This appears to have been a result of Arwyn refusing to eat in protest at being in a place in which he did not wish to be. As GR submits, Arwyn was repeatedly stating that he wished to go home. At least after the first admission, those were foreseeable and indeed foreseen consequences of taking him into care. As has been observed above, some of the treatments to which Arwyn was subjected as a result carried considerable risks, and as appears from the account set out above, some of those risks materialised. His condition appears to have improved when the treatment plan was implemented under Kunc J’s orders at the end of 2019, and when depot Olanzapine was administered by Associate Professor Madden in mid-2020.

3. [117]

   GR submitted that Arwyn was repeatedly subjected to extraordinary medical treatment without the Court’s approval. Such approval had been sought and given on 15 March 2019, but those orders terminated on 16 May 2019. Thereafter, no approval was sought – in particular for the restraints and involuntary feeding during the fourth admission. It was not suggested that the Secretary’s power to authorise medical treatment extended to treatment which a parent could not consent to for a child without the Court’s approval. The detention, restraint and involuntary feeding of a child has conventionally been regarded as a course of treatment that is permissible only with the Court’s approval. [202] Approval for such treatment between 15 March and 16 May 2019 was sought and obtained, but not otherwise. And although I have not found evidence that such treatment was administered after the remarks I made on 7 November 2019, it is by no means clear that Arwyn has at any stage been at liberty to depart if he wished from the hospital or other premises in which he has been kept. If that be so, while it may well have been prudent from a care perspective, it would have involved such an infringement of his human rights as to require the Court’s authority. [203] As I have previously said, it is regrettable that in these respects Community Services acted unilaterally: their actions, however well-intentioned, have materially contributed to the perception held at least by GR that Community Services has acted as a “law unto itself”.

4. [118]

   While I accept that, at least until the treatment plan was implemented under Kunc J’s orders at the end of 2019, Arwyn’s condition deteriorated while he was in care of Community Services, and that the extreme treatments to which he was subjected were necessitated by his refusing to eat in protest at being in Community Services’ care and not in his home with his parents, it does not follow that the judgments below were erroneous. As I have said, at least with the benefit of hindsight, minds might differ as to whether Arwyn might have fared better if left with his parents than, as transpired, if he were admitted to hospital with the traumatic course that ensued. However, in the proceedings below, both the Children’s Court and the Equity Division were not sitting in judgment with the benefit of hindsight on past decisions, but deciding what arrangements would be best for Arwyn in the future. At least by the time of the proceedings before Sackar J, Arwyn’s condition had stabilised, his eating had improved, and his functioning was improving. As his Honour explained: [204]

5. [119]

   It is very difficult to dispute that evaluative judgment. Thus, while I would not refuse leave on the basis there was no apparent arguable error, that is not to say that a more than merely arguable case of error in Sackar J’s ultimate decision has been demonstrated.

Prospects of a different order: current arrangements v the alternative?

1. [120]

   If error were established, this Court would then have to consider for itself, upon rehearing, what order should be made. Typically, cases involving the care of children require evaluation of competing proposed arrangements for their placement and care. If this Court were to find error in the judgment below, it would then be required to undertake that exercise. In this case, the competing alternatives are that he remain in his current placement, or that he be restored to his mother’s care.

2. [121]

   Although GR submitted that there was no status quo, that is not correct; Arwyn is living in arrangements which have been in place since April 2020, and in the context of which planning for his transition to adulthood is taking place. GR has filed an application in the Children’s Court for leave to apply to rescind the care orders. Those proceedings were listed for hearing on 9 June 2022, but on GR’s application were adjourned pending the outcome of this appeal.

3. [122]

   The significant issues concerning Arwyn during the next four months appear to be the treatment of Arwyn’s arthritis, and his transition to adulthood.

4. [123]

   Arwyn remains in his long term placement. He is attending school in person and is said to be performing well academically but struggling with social interaction. He engages with a mentor and an occupational therapist, and is enjoying equine therapy. He appears to be developing some socialisation through this therapy and connection with farm animals. He has twice weekly video calls with his father, and last saw him face-to-face in April 2022. His casework manager says that he continues to express that he does not want to have contact with his mother, and when asked about having contact with her says that he would like his computers and his Bitcoin which he believes are in her house. Written communications and gifts from his mother are provided to him, and photos of him viewing them are sent back to her.

5. [124]

   His eating continues to be overseen by Associate Professor Madden. On 2 June 2022 he weighed 47.95kg. His medications are prescribed by medical professionals. He has not had Olanzapine since 25 June 2020. He has a diagnosis of polyarticular arthritis, which appeared in or about August 2021 and for which he is receiving treatment, to which further reference is made below.

6. [125]

   Before Sackar J, GR’s case was that Arwyn would live in the home at Charlestown in her fulltime care with support from an NDIS “in home care package”. For medical care, he would continue to attend the General Practice at Charlestown, and receive specialist care from Educare at Charlestown (Dr Kable’s practice), which had a number of child and adult psychiatrists, psychologists, physicians, neurologists and other medical and allied health care specialists. GR proposed that Arwyn required urgent assessment by a neurologist for extreme difficulty walking and talking and loss of fine motor control since the Olanzapine injections; urgent assessment by an ophthalmologist for impaired vision following a “forced induced coma of 1-3 September 2019 for refusal to eat hospital food”; cardiology assessment “for follow up of a punctured heart from incompetent central arterial and venous lines insertion … on 15 March 2019, and from cardiac arrest in the 1-3 September 2019 induced coma”; psychiatrist assessment and treatment “for his post-traumatic stress disorder since assumption by [Community Services]”; and by a dietician to assess “the extremely restricted protein/calorie deficient vegan diet he has been fed …”. As to schooling, GR proposed that Arwyn be home-schooled by distance education with reintegration into a normal school, which he would attend in person once he has recovered from his PTSD. She proposed to renew and encourage contact with family members including his father and grandmother; his friends Marco and Jack. [205]

7. [126]

   In this Court, GR referred to an affidavit which had been read on an interlocutory application before Simpson AJA for a stay, to which was annexed a letter from Hunter Primary Care, of which she said: [206]

8. [127]

   Thus the alternative proposal was that Arwyn would reside with GR in her home, with support funded by NDIS and coordinated by Hunter Primary Care. In fact, the letter from Hunter Primary Care falls short of any such guarantee as the applicant asserted. It states:

9. [128]

   What these proposals conspicuously fail to address is how the situation will be managed if Arwyn were to barricade himself in his room, refuse to attend school, demand money, threaten or inflict violence, or restrict his food intake. Given his history, the aspiration that he would not revert to such behaviour if returned to the environment of his home, or that if he did GR would be able to manage the situation, would be a triumph of hope over experience. It is clear from GR’s statements and communications that she harbours deep reservations about his attendances at a farm for equine therapy, as she complains that he is being used for slave labour shovelling manure, and it must be anticipated that she would not be supportive of this therapy, which at last appears to be providing Arwyn with an outdoor activity and interest in which he is willing to participate.

10. [129]

    Before this Court was tendered a “Statement of Views and Wishes of [Arwyn]” prepared on 13 May 2022 by the Independent Legal Representative for the purposes of GR’s rescission application in the Children’s Court proceedings, which includes: [207]

11. [130]

    After the hearing, GR provided additional material which, generally, it is inappropriate to take into account, because there has been no opportunity to test it or to answer it. However, among that material was a more recent statement of Arwyn’s wishes prepared by the ILR, for new proceedings in the Equity Division. While GR submits that Arwyn states that his first preference is to live at home, in fact the statement is relevantly:

12. [131]

    While these statements have their limitations, it is relevant to observe that whereas at earlier times Arwyn had expressed a firm wish to return home (where his computer and bitcoin remained), it now appears that Arwyn does not wish to express a view about contact with his mother, and wishes to reside on his own (with or without the help of carers). It is difficult to know what to make of that; it may mean no more than that he does not wish to share a house with another young adult, as has been proposed. It seems to me that his attitude to his mother is somewhat ambivalent; but beyond that no conclusion as to his attitude to residing with her can safely be drawn, given his preference to return to the home, where he knows that GR lives.

13. [132]

    It appears that in or about August 2021, Arwyn was diagnosed with “juvenile idiopathic arthritis – polyarticular course”, affecting the cervical spine, right shoulder, both hips and both knees, for which he was at first prescribed Prednisolone, and later Methotrexate. Some improvement was reported on 12 November 2021, but the condition had deteriorated by 14 January 2022, when he had developed “worsening pain in both his shoulders, hips and knees”, following which his dosage of Methotrexate was increased to 20mg weekly.

14. [133]

    By May 2022, Arwyn had been receiving this dose for more than three months. In a report of 11 May 2022, Dr Singh-Grewal states that he probably fulfilled the diagnosis of “Enthesitis-related Arthritis”, and that an MRI scan showed extensive enthesitis around his pelvis, and arthritis of both hips and sacroiliac joints, consistent with clinical examination. He wrote that Arwyn has been on Methotrexate for over 3 months “with inadequate response”, and recommends that he be commenced on a biologic drug, Adaluminab, which he considers is likely to be effective for this type of disease, and also intra-articular steroid injections of his hips, knees and sacroiliac joints under general anaesthetic. [208] This has been discussed with Arwyn, who is said to have “nodded his head” in response to the information provided. [209]

15. [134]

    GR says that on 8 September 2021 she spoke to Dr Walker of Hunter Imaging (who is said to have diagnosed septic arthritis in 2016), and that he said that Arwyn’s symptoms of left hip pain since August 2021 was a recurrence of that septic arthritis until proven otherwise. GR also says that she has consulted other specialists, most particularly Dr Pickles of John Hunter Hospital, who have confirmed her view that the presumptive diagnosis is septic arthritis, or “chronic multifocal osteomyelitis”.

16. [135]

    However, no admissible evidence to support such a diagnosis has been produced, partly because medical practitioners who might have done so have been advised not to provide reports at GR’s request other than pursuant to subpoena. [210]

17. [136]

    Dr McCaskill, the Medical Superintendent of SCH-W, says that it appears from the clinical records that on 13 August 2021 Arwyn presented to the Emergency Department at SCH-W with a history of discomfort on walking, with pain in his left hip and knee over the preceding week; that the potential for septic arthritis was flagged because of a history of that diagnosis; that on examination he was still walking, had a good range of passive movement of his hip and knees, and that his joints were not hot; that he was observed to look well, he had only a low grade temperature, and his symptoms had not changed significantly during the week he had been experiencing them. Dr McCaskill states that this is not consistent with septic arthritis, which is an acute condition with symptoms which rapidly deteriorate and there is no passive movement of the infected joint. [211] Dr McCaskill says that she has discussed the concerns raised by GR with the orthopaedic and rheumatology teams to ensure they are aware of those concerns. [212] Dr McCaskill also deposed that as Arwyn was under the parental responsibility of the Minister, GR was not provided with information about his medical treatment, which was subject to privacy controls preventing the sharing of information with persons who do not have parental responsibility. [213]

18. [137]

    In a report of 23 March 2022, Dr Singh-Grewal states that following his presentation in August 2021, an x-ray showed reduced joint space in the hips suggesting that he had already experienced some irreversible joint damage; an ultrasound showed no effusion, but a bone scan showed extensive polyarticular arthritis including both shoulders and hips and one knee and ankle; that he had other symptoms typical of inflammatory arthritis, and fulfilled the criteria for the diagnosis of polyarticular juvenile arthritis. He continued:

19. [138]

    Dr Singh-Grewal then proceeds to express the view that Arwyn’s treatment with Prednisolone (a strong anti-inflammatory corticosteroid, at a moderately high dose, to give immediate relief from stiffness and pain) and Methotrexate (a disease modifying anti-rheumatic drug commonly used worldwide for the long-term treatment management of arthritis in children and young people) was universally accepted as standard therapy for polyarticular juvenile idiopathic arthritis; and that his arthritis responded very well to this therapy with an improvement in his symptoms being reported. He then proceeds to answer, plausibly, various concerns expressed by GR concerning risks and side-effects associated with Methotrexate.

20. [139]

    Ms Eldridge has deposed (emphasis added): [214]

21. [140]

    Although I was troubled by the combination of the opinion attributed to Professor Pickles, the assertion that Arwyn had previously had septic arthritis in the same joint which had responded to antibiotics, and the circumstance that his present condition has not responded to the medication which ought to have treated it, and concerned that a differential diagnosis of septic arthritis might have been subconsciously downplayed by those responsible for Arwyn’s care because it was suggested by GR, there is no admissible medical opinion that Arwyn has bacterial arthritis. The statements attributed by GR to Professor Pickles are hearsay and must be treated with great caution in the light of GR’s propensity to misinterpretation and overstatement. Moreover, it now seems highly questionable that Arwyn has ever had a septic arthritis. Further, it tells against the suggested diagnosis of recurrent septic arthritis of the left hip that Arwyn’s current symptoms are not limited to the left hip: an MRI scan in April 2022 showed extensive enthesitis around his pelvis, and arthritis of both hips and sacroiliac joints; further, on examination in the SCH-W Rheumatology clinic on 15 May 2022, he had arthritis of the knees, hips and sacroiliac joints. GR incorrectly states that “both times Arwyn had the same problem in the same hip before, he recovered quickly with antibiotics”: the 2017 episode involved the right hip.

22. [141]

    I am unpersuaded that Arwyn’s arthritis would be better managed if he were in GR’s care than if he were to remain in the care of the Minister.

23. [142]

    Transition planning by Community Services for Arwyn’s leaving care upon attaining 18 years at this stage contemplates that he will move to a supported independent living arrangement with one other young adult, in a large house in which each resident will have their own space. Arwyn is nervous about this change. He has met the other proposed resident on three occasions. It is said that the meetings went well, but Arwyn remains apprehensive. I suspect that it is this concern which informs his expressed wish to live on his own.

24. [143]

    Application has been made, by Community Services, to NCAT for guardianship and financial management orders for Arwyn. The application was listed for hearing on 20 July 2022, after judgment in this application was reserved.

25. [144]

    Independent living, with or without a co-resident, will pose considerable challenges for Arwyn. The issues for the Tribunal will include whether placing him in a home with another resident, when he has clearly indicated that is not his preference, risks the type of response which has occurred in the past whenever he has been moved somewhere he does not want to be. The aspiration that he will respond differently on this occasion involves hoping that what has always happened in similar circumstances in the past will not do so in the future.

26. [145]

    Nonetheless, my impression is that Arwyn will be better prepared for adulthood under the current arrangements than if he were to return to his mother’s home – not least because the last thing he needs while adapting to the impending changes is another short-term change and disruption in the meantime, and also because he will continue to benefit from his equine therapy in the meantime.

27. [146]

    Whatever might have been the difficulties and risks associated with Arwyn’s care by Community Services in the past, the current arrangements are safe and offer stability. The alternative of returning to his mother’s care is full of risk, despite the best of intentions. It would involve a radical change, disrupting his current residential, educational and therapeutic arrangements, for the sake of a period of less than four months. In particular, I do not regard it as in his long-term interests that he be returned to an environment in which there is a risk that he could resume the manipulative and controlling behaviours of the past, and withdraw from the social engagement which his equine therapy is supporting. This conclusion is also informed by the parents’ historical difficulties in engaging with support services, and Arwyn’s historically ambivalent relationship with both parents. I am unpersuaded that he would receive better medical care – either in respect of his arthritis, or more generally – in his mother’s care, and indeed I am concerned that in his mother’s care he might be subjected to a regime of medical reviews and examinations of doubtful necessity.

28. [147]

    The guardianship proceedings in NCAT are the forum which can now significantly affect Arwyn’s future arrangements. In the meantime, continuation of the current arrangements rather than a radical change provides the surer platform to prepare him for transition to adulthood. In my view, it is inconceivable that, even if error were established, this Court would disturb the current arrangements, for a period of less than four months.

Disposition

1. [148]

   In the context of a second appeal, where there are concurrent findings in the Children’s Court and on appeal in the Equity Division, there are insufficient prospects of this Court making an order disturbing the current arrangements for the less than four months that it would be in force to justify a grant of leave to appeal. As, for that reason, an appeal in my opinion has no prospects of ultimate success, leave to appeal should be refused.

2. [149]

   I propose the following orders:

   1. (1)

      Dismiss the applicant’s motion filed on 9 February 2022, with costs;

   2. (2)

      Dismiss the summons for leave to appeal, with costs.

3. [150]

   MITCHELMORE JA: This is an application for leave to appeal from a decision of Sackar J dated 27 August 2021, dismissing an appeal from orders of the former President of the Children’s Court, Johnstone ChCP, allocating parental responsibility for Arwyn to the Minister until he attains 18 years of age: GR v The Department of Communities & Justice [2021] NSWSC 1081. I have had the significant advantage of reading the draft reasons of Brereton JA which address the background to the decision of the primary judge, which his Honour describes as the “Judgment below”. I agree with Brereton JA that the summons for leave to appeal from the Judgment below should be dismissed.

4. [151]

   The Judgment below related to an appeal that the applicant brought pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”). Section 91(2) of the Care Act provides that such an appeal “is to be by way of a new hearing”, as opposed to a rehearing: SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [41]. The primary judge accepted as correct and adopted Johnstone ChCP’s discussion of the relevant principles, which his Honour summarised at [189]-[199]. Relevantly for present purposes, his Honour considered at [199] that the matters in s 90(6) of the Care Act, which a court is required to take into account in deciding whether to vary or rescind a care order, provided some guidance as to the relevant considerations on the appeal before him, either directly or by analogy. Those matters are:

5. [152]

   The primary judge described the question of “where it is best for [Arwyn] to receive the care he needs” as being “at the forefront at every turn in this case”: at [799]. His Honour approached that question having made a number of anterior findings, including:

   1. (1)

      Arwyn needed “a great deal of care from various professionals”, which was likely to be the case for some time to come, perhaps years: at [783].

   2. (2)

      Arwyn was being “well cared for in all relevant respects”, including monitoring in relation to medical issues “appropriately when and as needed”: at [788]. Among the matters his Honour noted in this context was that Arwyn had “of late” been increasing his physical activities gradually and was at that time, and on the evidence before his Honour, not on any medication: at [786]-[787].

   3. (3)

      In relation to Arwyn’s wishes, which his Honour described as an “important issue”, there had been a change from his stated wish “certainly in 2020 to go home”, to a wish (expressed to Associate Professor Madden) to live independently: [789]-[780]. His Honour also accepted the evidence of Dr Fairley that, on a (then recent) visit he made to Arwyn in the company of Professor Einfeld, when he and Professor Einfeld repeatedly asked Arwyn what he wanted, Arwyn said that “he wanted to return to a place but not a person”: [791].

   4. (4)

      Neither Dr Fairley nor Professor Einfeld had detected a wish on Arwyn’s part to return to his mother: [792]. Their evidence in this regard was consistent with that of Ms Eldridge, a caseworker at the Department of Communities and Justice, whose evidence was that she and others had encouraged Arwyn to have contact with his mother but he had resisted: [793].

   5. (5)

      Although Arwyn wished to live independently, and his wishes should be respected, Arwyn could not live independently as a matter of practical reality: [796].

6. [153]

   The primary judge described Arwyn as living in a stable environment, where he had been living for some time. He had daily contact with his mentor and was completing his schoolwork online with assistance from his carers and, from time to time, teachers who attended the home: [797]-[798]. With the exception of experts who had not seen Arwyn or met the applicant in person, the experts were of the view that Arwyn’s best chances of further progression were to stay where he was “for the foreseeable future”: [800]-[803].

7. [154]

   His Honour returned to this subject at [849] in concluding that he was unable to be satisfied that the applicant was capable of having responsibility for Arwyn at home. Brereton JA extracts the entirety of [849] at [118] above, and I respectfully agree with his Honour that it is very difficult to dispute that evaluative judgment. I would add that what is of particular significance on the application for leave to appeal is the extent to which the benefits that Arwyn was deriving from his present placement were integral to the primary judge’s assessment. Specifically in this regard, the primary judge stated:

8. [155]

   The applicant’s submissions in support of the application for leave were primarily focused on matters of history regarding Arwyn’s care and treatment. Although Brereton JA has addressed those matters in comprehensive and careful detail, I do not consider it necessary to express a view on them, for two reasons. First, I consider that the matters with which the applicant was preoccupied did not relevantly impugn the correctness of the primary judge’s conclusion as to where it was best for Arwyn to receive the care he needed, central to which was an evaluative assessment of Arwyn’s circumstances at the time. Second, and in any event, having regard to what the evidence before this Court disclosed about Arwyn’s current circumstances and his wishes, and the alternative arrangements for which the applicant contended (summarised by Brereton JA at [123] to [141]), I agree with Brereton JA’s conclusion at [148] that there are insufficient prospects of this Court making an order disturbing the current arrangements in the limited period that remains before Arwyn turns 18. The orders that the applicant sought in the Further Amended Notice of Appeal in this regard, assuming that leave were granted and the appeal allowed, variously involved setting aside the arrangements in their entirety and returning Arwyn to her care, in the home in which she resides.

9. [156]

   Accordingly, the summons should be dismissed. The applicant’s notice of motion filed on 9 February 2022, by which she sought to challenge the costs order made by Simpson AJA, should also be dismissed for the reasons given by Brereton JA.