The Supreme Court of Victoria has held that a Court’s exercise of parens patriae jurisdiction can allow it to grant orders substantially restricting the liberty of a child where such orders are in a child’s best interests and necessary for the child’s ongoing care and protection. The Court further held that neither the statutes in issue nor the Victorian Human Rights Charter operate to exclude the exercise of parens patriae jurisdiction.
Beth (a pseudonym) is a 16 year old girl with an intellectual disability. The Secretary to the Department of Human Services has been Beth’s guardian since she was four years old. Beth comes from a dysfunctional family background, has suffered sexual abuse and violence and has exhibited self-destructive and violent behaviour.
Beth was placed in a number of different residential care environments. Each of those placements ultimately saw Beth’s behaviour deteriorate.
On 27 November 2012, Justice Cavanough made interlocutory orders that enabled Beth to be placed in a purpose-renovated house where she could be treated and supported by staff. The house can be locked to prevent Beth from absconding and it contains a “calm down room”.
After moving to the house, Beth’s ability to behave appropriately improved dramatically. The Secretary subsequently sought orders in the parens patriae jurisdiction of the Court that would permit Beth to continue to reside in the house at least until a review by the Court 12 months from the date of the orders.
The Court was assisted by the Victorian Equal Opportunity and Human Rights Commission as intervenor and the Public Advocate and Victoria Legal Aid as amici curiae. Those parties did not oppose the primary orders sought by the Secretary. However, they did submit that the orders should provide for independent representation for Beth in future proceedings relating to the orders, although this was opposed by the Secretary.
The statutory framework
Justice Osborn considered at length the provisions of the Children, Youth and Families Act 2005 (Vic) and the Disability Act 2006 (Vic), and looked at the extent to which those statutes permit the Secretary to house Beth in the manner proposed.
His Honour held that the placement fell within the terms of a “secure welfare service” under section 173(2)(b) of the CYF Act. That section limits such placements to a maximum duration of 42 days. In the Secretary’s view, Beth’s situation required a placement longer than 42 days. His Honour held, therefore, that the orders sought exceeded the statutory powers of the Secretary.
His Honour also considered the Disability Act, and held that provisions of that Act in relation to restrictions on liberty had to be “read as subject to such rights to detention as are created: (a) by an order made in the parens patriae jurisdiction; and (b) by a decision made in the best interests of a child under the CYF Act”.
Given the orders sought by the Secretary went beyond what was permitted by statute, his Honour then considered whether the Court could “supplement the statutory schemes” and make the orders in any case.
Parens patriae jurisdiction
The question before Justice Osborn was whether the parens patriae jurisdiction of the Court would allow the Court to make the orders sought.
Justice Osborn restated the principles of parens patriae jurisdiction emerging from cases like Marion’s Case  HCA 15. His Honour stated that the exercise of parens patriae jurisdiction is “directed to the protection of children who are not legally competent to look after themselves”. His Honour held that the authorities established “the essential function of a court exercising jurisdiction of the kind in issue as being that of deciding whether in the circumstances of the case the order sought is in the best interests of the child”.
Justice Osborn further held that neither the CYF Act nor the Disability Act displace the Court’s parens patriae jurisdiction, and that “[b]y its nature the jurisdiction may be invoked to supplement a statutory scheme”. On this basis, Justice Osborn granted the orders sought substantially on the conditions proposed as his Honour was satisfied that they were in the best interests of Beth.
Justice Osborn was also required to consider whether the proposed orders should provide for independent representation for Beth.
His Honour considered a range of decisions of the NSW Supreme Court in its parens patriae jurisdiction which had all adopted the practice of affording representation to children of the same type as they would receive in child protection proceedings before the Children’s Court. His Honour noted the statement of Justice White in Re Alexis  NSWSC 1545 that representation was “customary in such matters”.
Justice Osborn stated that “[i]ndependent representation is…a significant safeguard against the inappropriate exercise of the disproportionate power which the Secretary will hold in respect of Beth under the proposed order”. Further, his Honour stated that the future review of the proposed orders would “be fixed at a time when it may reasonably be expected that Beth’s ability to give meaningful instructions will have improved somewhat after a relatively significant period in her current accommodation”.
Justice Osborn ordered that the representation proposed be provided to Beth on a “best interests” basis. His Honour referred to the decision of Justice Garde in A & B v Children's Court of Victoria & Ors  VSC 589, which described best interests representation as “the legal practitioner [acting] in what he or she considers to be the best interests of the child … even in best interests legal representation, the legal practitioner to the extent that it is practicable to do so must communicate to the Court the instructions given or wishes expressed by the child”.
The decision is significant in its finding that the Charter does not fetter the Court’s powers to make orders in its parens patriae jurisdiction. It is of interest that the Commission did not oppose the orders sought by the Secretary, despite the substantial limitations that the orders placed upon Beth’s Charter rights to liberty, privacy, freedom of movement and freedom from medical treatment without consent. The Commission conceded that the orders would be compatible with the Charter if they “were only those necessary to achieve the purpose of caring for and protecting Beth and continue to be the least restrictive means reasonably available to achieve this purpose”. As his Honour noted, there is an awareness of the parties in the case that if the orders were not made then Beth would suffer substantial involuntary confinement either within secure welfare services or the youth justice system.
Re Beth is one of a number of decisions like A & B v Children's Court of Victoria and R v Chaouk & Ors  VSCA 99 that have all emphasised the importance of independent legal representation as a safeguard in court proceedings. This judgment is of particular importance given that amendments to the CYF Act have resulted in children 7–9 years of age losing their right to legal representation in child protection proceedings. This decision will ensure that the issue of legal representation and its importance in the justice system remains a live one.
The decision can be found online at: http://www.austlii.edu.au/au/cases/vic/VSC/2013/189.html
James Apps is a solicitor in the King & Wood Mallesons