Re Beth [2013] VSC 189 (23 April 2013)

Ms K Miller, Victorian Government Solicitor's Office

For the Victorian Equal Opportunity and Human Rights Commission

Ms S Cauchi, Victorian Equal Opportunity and Human Rights Commission

1 Beth[1] is a 16 year old girl who was removed from the care of her parents by Queensland authorities when she was a small infant. The applicant ('the Secretary') has been her guardian since she was four years old. Beth's subsequent history has presented special difficulties and severely tested the capacity of the Secretary to provide adequately for her care.

2 Beth suffers from intellectual disabilities and comes from a dysfunctional family background. She has suffered significant sexual abuse and violence in the course of her short life. She has in turn exhibited significant self-destructive behaviours and engaged in violence towards others.

3 The Secretary has the guardianship and custody of Beth pursuant to a protection order made under the Children, Youth and Families Act 2005 ('the CYF Act').

4 As Beth's guardian, the Secretary has all the rights, powers, duties and obligations of a natural parent.[2]

5 Custody and guardianship for this purpose encompass the right and responsibility for the daily care and control of Beth together with the right to make, and responsibility for, decisions about her long-term welfare.[3]

6 The accommodation options for Beth which are available pursuant to the CYF Act and the Disability Act 2006 ('the Disability Act') have proved materially inadequate or inappropriate for a variety of reasons.

7 On 27 November 2012 Cavanough J made interlocutory orders enabling Beth to be placed in a purpose-renovated house that provides a secure and lockable environment until further order of the Court.

8 The Secretary now seeks an order from the Court in the following terms:

1. The Victorian Equal Opportunity and Human Rights Commission intervened in these proceedings pursuant to section 40 of the Charter of Human Rights and Responsibilities Act 2006.
2. The Court notes that it is common ground that:
   1. Part 7 of the Disability Act 2006 ('the Disability Act') applies to [the nominated agency] as a 'disability service provider' as defined in section 3 of the Disability Act, and applies to Beth because she satisfies the criteria in section 133 of the Disability Act.[4]
   2. The supervision of community visitors under Division 6 of Part 3 of the Disability Act applies to [the nominated agency] in its care of Beth.
   3. The Child Safety Commissioner[5] is empowered to monitor the conditions under which Beth is residing and being cared for, pursuant to Division 3 of Part 6 of the Child Wellbeing and Safety Act 2005.
   4. The Public Advocate is empowered to inspect the premises at which Beth is being cared for, see Beth and make inquiries relating to her care, detention and treatment or control pursuant to section 18A of the Guardianship and Administration Act 1986.

1. Until the making of orders pursuant to the review referred to in paragraph 4 or further order, and notwithstanding the provisions of Part 8 of the Disability Act and the provisions of section 173(2)(b) of the Children, Youth and Families Act 2005, the Secretary and those acting under her direction are authorised to place Beth in the residential facility described in the affidavit of Robyn Miller dated 22 November 2012 (being premises operated and staffed by [the nominated agency]) and to use, and direct staff at [the nominated agency] to use, whatever means may be reasonably necessary for that purpose, including lock up facilities, provided always that the staff at [the nominated agency] seek to use the least restrictive means necessary.
2. Until further order, the Secretary and those acting under her direction and the staff at [the premises of the nominated agency] are authorised to use restrictive interventions (as that expression is defined in section 3 of the Disability Act) on Beth and, as far as is necessary, to use reasonable force in doing so, provided always that they seek to use the least restrictive means necessary.
3. No later than 6 months after the date of this order, the Secretary shall file and serve on the intervenor and amici curiae[6] a report from the Senior Practitioner, Specialist Services, Disability Services, Department of Human Services, or a person in a similar position, as to whether the orders in paragraphs 1 and 2 hereof continue to be required, together with any modifications which should be made to the orders to reduce the level of restrictions imposed on Beth. Such report is to:

1. why the orders (with any modifications) continue to be required in Beth's best interests, if that is the opinion she forms;
2. the progress that Beth has made as against the statutory plans referred to in paragraph 3(b); and

iii. a summary of Beth's views on the placement;

b. attach the operative versions of:

1. the Behaviour Support Plan, which will comprise the Care and Case Plan which is currently Exhibit LS-1 to the affidavit of Linda Saffron affirmed on 26 November 2012 and the Care and Support Plan which is currently Exhibit 1 tendered at the hearing before Justice Cavanough on 27 November 2012; and
2. the Statutory Case Plan under s 167 of the Children, Youth and Families Act 2005 including Stability Plan under s 170 of the Children, Youth and Families Act 2005, which is currently Exhibit B tendered at the hearing before Osborn J on 7 March 2013;
3. attach a report by the Senior Practitioner on the use of restrictive interventions since the hearing; and

1. attach reports from Beth's treating general practitioner and psychiatrist identifying what medications have been prescribed for Beth and why those medications have been prescribed.

1. The orders in paragraphs 1 and 2 hereof are to be the subject of a review by the Court on fresh evidence in 12 months from the date of these orders.
2. The Secretary, any intervenors and the amici curiae have liberty to apply on two days' notice, such notice to specify any orders sought.

9 It can be seen that this order involves a substantial restriction upon Beth's liberty and will subject her to a form of ongoing managed detention.

10 The order is sought in the parens patriae jurisdiction of the Supreme Court on the basis that it is in Beth's best interests and necessary for her ongoing care and protection.

11 Conversely it is submitted that the remedies and procedures available to the Secretary under the CYF Act and the Disability Act are inadequate. It is submitted that, in the exceptional circumstances of this case, the Court should supplement the statutory schemes which are available for Beth's care and make the particular orders which are sought.

12 Upon the hearing of the application the Court was assisted by the Victorian Equal Opportunity and Human Rights Commission ('the Commission') as intervenor and the Public Advocate and Victoria Legal Aid ('Legal Aid') who appeared as amici curiae.

13 None of the parties who appeared opposed the core orders sought by the Secretary, but each emphasised the need for adequate independent monitoring and review of the appropriateness of the orders and made submissions as to appropriate conditions intended to achieve this outcome.

14 For the reasons I shall explain I have ultimately concluded that, despite their radical nature, orders substantially in the form advanced by the Secretary are appropriate in the present case. At heart this is because I accept that they are in Beth's best interests and are necessary for her ongoing care and protection.

15 In order to explain why, it is necessary first to deal with the legal framework within which Beth's case must be assessed, secondly to elaborate the factual basis on which the orders are sought and thirdly to address the detail of the proposed orders.

The Secretary as guardian and the operation of the Children, Youth and Families Act 2005

16 The second main purpose of the CYF Act is to provide for the protection of children.[7] A principal mechanism utilised to achieve this purpose under the Act is the making of protection orders including guardianship and custody orders to the Secretary. In turn the CYF Act grants the Secretary a variety of specific powers relating to children in need of protection, including powers with respect to the making of plans for the care and protection of children and powers to place children in need of protection in a variety of types of accommodation.

17 Section 4 of the CYF Act provides for guardianship of a child:

A person (including the Secretary) who has, or under this Act is granted, guardianship of a child, has responsibility for the long-term welfare of the child and has, in relation to the child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than -

(a) the right to have the daily care and control of the child; and

(b) the right and responsibility to make decisions concerning the daily care and control of the child.

A person (including the Secretary) who has, or under this Act is granted, custody of a child has -

(a) the right to have the daily care and control of the child; and

(b) the right and responsibility to make decisions concerning the daily care and control of the child.

19 Section 8 requires decision makers acting under the CYF Act to have regard to the principles in pt 1.2 of that Act.

20 Section 10(1) sets out the fundamental criterion of the best interests of the child:

For the purposes of this Act the best interests of the child must always be paramount.

21 Section 10(2) provides that in determining whether a decision or action is in the best interests of the child the need to protect the child from harm and to protect his or her rights and to promote his or her development must always be considered.

22 It can be seen that in some cases such as the present the need to protect a child from harm or to provide for his or her development may potentially conflict with the need to protect his or her rights.

23 Section 10(3) provides for a series of individual considerations that may bear upon the best interests of the child. They relevantly include the following:

(d) the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;

(e) the effects of cumulative patterns of harm on a child's safety and development;

(f) the desirability of continuity and stability in the child's care;

...

(l) the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity;

...

(n) the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social opportunities;

(o) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;

(p) the possible harmful effect of delay in making the decision or taking the action;

...

(r) any other relevant consideration.

24 Section 11 provides for decision making principles which relate to appropriate decision making and implementation processes. They include:

(b) where a child is placed in out of home care, the child's care giver should be consulted as part of the decision-making process and given an opportunity to contribute to the process;

(c) the decision-making process should be fair and transparent;

(d) the views of all persons who are directly involved in the decision should be taken into account;

(e) decisions are to be reached by collaboration and consensus, wherever practicable;

(f) the child and all relevant family members (except if their participation would be detrimental to the safety or wellbeing of the child) should be encouraged and given adequate opportunity to participate fully in the decision-making process;

(g) the decision-making process should be conducted in such a way that the persons involved are able to participate in and understand the process, including any meetings that are held and decisions that are made; ...

25 Section 16(1) imposes specific responsibilities on the Secretary. They include the following:

Without limiting any other responsibility of the Secretary under this Act, the Secretary has the following responsibilities -

(a) to promote the prevention of child abuse and neglect;

(b) to assist children who have suffered abuse and neglect and to provide services to their families to prevent further abuse and neglect from occurring; ...

26 Chapter 4 of the CYF Act relates to children in need of protection. Beth is a child who has been assessed by the Children's Court of Victoria as being in need of protection, and as a consequence the provisions of ch 4 apply to her.[8] The concept of a child in need of protection is elaborated in s 162 of the CYF Act. The evidence as a whole establishes that Beth has been and continues to be a child in need of protection at least in the following senses:

(1) For the purposes of this Act a child is in need of protection if any of the following grounds exist -

...

(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;

(d) the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;

(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type; ...

27 Part 4.9 of the CYF Act provides for protection orders. A court may make an order under this part in respect of a child if the court finds that the child is in need of protection[9] or in some circumstances where there are substantial and irreconcilable differences between the child and the person who has custody of the child.[10]

28 Protection orders in the relevant sense are defined to include a custody to Secretary order and a guardianship to Secretary order.[11] Such orders may continue to be in force until a child attains 18 years of age.[12] Likewise, pursuant to s 3 a child is relevantly a person who is under 17 years or, if a protection order continues in force in respect of him or her, a person who is under the age of 18 years.

29 Section 287 relevantly provides that a custody to Secretary order grants sole custody of the child to the Secretary and remains in force for the period, not exceeding 12 months, specified in the order.[13]

30 Section 289 provides that a guardianship to Secretary order grants custody and guardianship of the child to the Secretary to the exclusion of all other persons and remains in force for the period, not exceeding two years, specified in the order.[14] Beth is subject to such an order. Section 172 of the CYF Act states the general powers of the Secretary as a guardian and custodian. They include the following:

(1) The Secretary, in relation to a child who is under his or her guardianship -

(a) is the guardian of the person and estate of the child to the exclusion of all other persons; and

(b) has the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have.

(2) The Secretary, in relation to a child who is in the custody or under the guardianship of the Secretary -

(a) has the sole right to the custody of the child; and

(b) may demand, sue for and recover any money due to the child; and

(c) in the name and on behalf of the child may commence and prosecute any proceeding relating to any property or rights of the child.

(3) The Secretary may detain without warrant any child who is in the custody or under the guardianship of the Secretary.

31 The Secretary concedes that s 172 must be read in the context of the further provisions of the CYF Act. In particular, s 172(3) would not warrant the long-term placement of a child in circumstances other than those envisaged by s 173. This construction is necessary to give meaningful effect to s 173 and is further supported by s 32 of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter') in conjunction with the liberty right recognised by s 21.

32 Section 173 provides for the placement of children who (among other categories) are under the guardianship of the Secretary under the CYF Act. By s 173(2) the Secretary may deal with a child in any one of the following ways:

(a) place him or her in an out of home care service;

(b) place him or her in a secure welfare service for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days) if the Secretary is satisfied that there is a substantial and immediate risk of harm to the child;

(c) place him or her for adoption under the Adoption Act 1984 if he or she is under the guardianship of the Secretary and available for adoption;

(d) place him or her in any other suitable situation as circumstances require.

33 Again, the Secretary properly concedes that s 173(2)(d) would not empower the Secretary to place a child in a secure welfare service other than in accordance with s 173(2)(b). This conclusion is necessary to give meaningful effect to s 173(2)(b) and is further supported by s 32 of the Charter in conjunction with the liberty right recognised by s 21.

34 In turn, s 174 imposes the following duties on the Secretary in placing a child.

(1) In dealing with a child under section 173, the Secretary -

(a) must have regard to the best interests of the child as the first and paramount consideration; and

(b) must make provision for the physical, intellectual, emotional and spiritual development of the child in the same way as a good parent would; and

(c) must have regard to the fact that the child's lack of adequate accommodation is not by itself a sufficient reason for placing the child in a secure welfare service; and

(d) must have regard to the treatment needs of the child.

(2) In placing a child under section 173(2)(d), the Secretary must have regard to the prescribed criteria (if any).

35 The nominated agency is an 'out of home care service' as defined by s 3 of the CYF Act and so falls within s 173(2)(a). The register maintained under s 54 of the CYF Act records the nominated agency as a 'Community-based Child and Family Service and Out of Home Care Service'.

36 In turn however a 'secure welfare service' ('SWS') is defined under the CYF Act to mean a community service that has lock-up facilities.[15] A 'community service' means a community service established under s 44 of the CYF Act or a body registered under s 46. The nominated agency is also a body registered under s 46 of the CYF Act.[16]

37 In the present case, the Secretary is satisfied that there is a substantial and immediate risk of harm to Beth (the precondition stipulated in s 173(2)(b)) but previous placements of Beth in a SWS have been unsuccessful.

38 The affidavit of Argiri Alisandratos[17] explains that there are approximately 6,000 children in Victoria who are in out of home care. The Secretary has responsibility for 4,500 children of these 6,000 children pursuant to either a guardianship, custody or other interim care order. Of those 4,500 children, approximately 2,500 are in kinship arrangements under the care of a family member. A further 1,400 children are in foster care. A further 550 children are in residential care. Most of the children in residential care are adolescents, although some younger children are placed in residential care at times due to their special needs.

39 Kinship care and foster care are classed as home-based care services, as they involve care delivered by volunteers or family members in their homes. Kinship care is the preferred placement model for children as it enables connections to be maintained with their family and cultural background. If kinship care is not possible the Department of Human Services ('DHS') considers whether the child can be placed in foster care.

40 Residential care involves facility based services. Children and young people are placed in residential care if they have complex needs or present with behaviours that mean they are not able to be supported effectively in kinship or foster care. Children may transfer to residential care as a result of failure in other forms of care.

41 There are two types of residential care. The most common form of residential care is community residential care. The other form of residential care is that provided in SWS.

42 Community residential care facilities are delivered by funded community service organisations such as Anglicare and MacKillop Family Services. They are based in the community and are managed by a rostered team of staff. Most facilities can accommodate four children, although some accommodate only two children at a time and others can accommodate up to five or six. Mr Alisandratos states:

1. Those who are placed in community residential care are usually severely traumatised and damaged from earlier experiences, such as abuse. Managing the day-to-day and longer term care needs of young people in community residential care can be challenging. The staff in community residential care manage the young person's needs by building relationships and engaging with them and working with their care teams. A young person's care team is typically made up of a care worker, case manager and any other support staff.

1. It is quite common for those in community residential care to abscond. Community residential care facilities are not locked facilities. Like any home, community residential care facilities can be locked to prevent people entering them. However, there is nothing to stop a person leaving the facility. Accordingly, the only means available to staff to prevent a young person from absconding are the relationships they have formed with that young person.
2. When a young person threatens to abscond from a community residential care facility, staff will intervene to dissuade them from doing so. However, since community residential care facilities are not locked facilities, there is ultimately nothing to stop a young person walking out the door. When a young person does so, a staff member will, if feasible, follow the young person and encourage them to return to the facility. The staff rely upon the relationship they have built with the young person to encourage them to return. However, if a young person has made up their mind to leave the facility, it is usually difficult to change that.[18]

1. SWS were designed to respond to the most at-risk children in the State. SWS respond to children who are at immediate and significant risk of harming themselves, such as children who are self harming, throwing themselves at cars or train lines. A child is placed in SWS when, despite attempts to engage, contain and mitigate the risk the child poses to themselves, that risk cannot be managed in community residential care.
2. A child is placed in SWS for the shortest feasible period to contain the child and then re-engage them in community residential care. The purpose of SWS is two-fold. The first purpose is to contain the child so that they are no longer at immediate or significant risk to themselves. The second is to undertake some restorative work and relevant health and therapeutic assessments to assist the young person to reengage and effectively transition back to their community residential care unit.
3. By containing the child and addressing the immediate risk to their safety, SWS provide staff with the capacity to deal with the child's health and therapeutic issues, which are usually the underlying causes for their risky behaviour, and rebuild relationships with the child. Community based interventions are brought within the contained environment of SWS so the child can re-engage with those interventions.

1. SWS are larger facilities than community based care facilities. There are only two SWS facilities in Victoria, one for boys and one for girls. They accommodate up to 10 young people at a time. The facilities are locked down. The external perimeter of an SWS facility is surrounded by high fences. All of the external doors to the facility are locked and can only be opened with a key. Only staff have access to the keys and may open the doors. Within the facility, certain parts of the facility can be locked down. There is a containment (or time out) room in each facility.[19]

44 The house in which Beth currently lives has been renovated to include lock-up facilities. Thus although it is not a gazetted SWS facility it falls within the terms of s 173(2)(b) and any placement within it would have a time limit of 42 days at most.

45 As counsel for the Public Advocate stressed, the time limit within s 173(2)(b) is deliberate. The second reading speech to the Children and Young Persons (Amendment) Bill 1990 relating to the precursor to the provision stated the following:

The provision is consistent with the intent of the principal Act where placement in a secure welfare service is restricted unless there is substantial and immediate risk of harm to the child. Experience has demonstrated that there are very few young people who are required to be placed in a secure setting for such reasons for 21 days.[20]

46 On the other hand in exceptional cases, the time limit provided for in s 173(2)(b) potentially threatens the stability of care which can be granted to individuals who are particularly vulnerable. In the Secretary's view Beth's case falls within this category and hence it is sought to place her in a secure facility for longer than s 173(2)(b) would otherwise permit.

47 Lastly, before leaving the CYF Act it should be noted div 1 of pt 4.3 of the CYF Act provides for case planning and stability planning in respect of children in Beth's situation. A case plan includes any relevant stability plan[21] and must be prepared in a series of circumstances which include a period within six weeks after the making of a guardianship to Secretary order.[22]

48 A case plan must contain all the decisions made by the Secretary concerning a child that:

(a) the Secretary considers to be significant decisions; and

(b) relate to the present and future care and wellbeing of the child, including the placement of, and access to the child.[23]

49 A stability plan must plan for stable, long term out of home care for the child.[24]

50 A stability plan must be prepared for each child who is in out of home care as a result of a protection order.[25]

The Disability Act

51 Beth has also been assessed as having an intellectual disability within the meaning of s 3 of the Disability Act.[26]

52 In consequence she is subject to the provisions of the Disability Act which has the following purpose:

The purpose of this Act is to enact a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities and which is based on the recognition that this requires support across the government sector and within the community.[27]

53 The objectives of the Disability Act are further stated to be to:

(a) advance the inclusion and participation in the community of persons with a disability;

(b) promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability;

(c) facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability;

(d) promote and protect the rights of persons accessing disability services;

(e) support the provision of high quality disability services;

(f) make disability service providers accountable to persons accessing those disability services;

(g) ensure the efficient and effective use of public funds in the provision of disability services.[28]

54 Section 5 states the following principles:

(1) Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.

_(2) Persons with a disability have the same right as other members of the community to - _

(a) respect for their human worth and dignity as individuals;

(b) live free from abuse, neglect or exploitation;

(c) realise their individual capacity for physical, social, emotional and intellectual development;

(d) exercise control over their own lives;

(e) participate actively in the decisions that affect their lives and have information and be supported where necessary, to enable this to occur;

(f) access information and communicate in a manner appropriate to their communication and cultural needs;

(g) services which support their quality of life.

(3) Disability services should -

(a) advance the inclusion and participation in the community of persons with a disability with the aim of achieving their individual aspirations;

(b) be flexible and responsive to the individual needs of persons with a disability;

(c) maximise the choice and independence of persons with a disability;

(d) be designed and provided in a manner that recognises different models of practice may be required to assist people with different types of disability and at different stages in their lives to realise their physical, social, emotional and intellectual capacities;

(e) enable persons with a disability to access services as part of their local community and foster collaboration, coordination and integration with other local services;

(f) as far as possible be provided in a manner so that a person with a disability need not move out of his or her local community to access the disability services required;

(g) be of high quality and provided by appropriately skilled and experienced staff who have opportunities for on-going learning and development;

(h) consider and respect the role of families, carers and other persons who are significant in the life of the person with a disability;

(i) acknowledge the important role families and carers have in supporting persons with a disability;

(j) acknowledge the important role families have in assisting their family member to realise their individual physical, social, emotional and intellectual capacities;

(ja) acknowledge the important role carers have in assisting the people they care for to realise their individual physical, social, emotional and intellectual capacities;

(k) where possible strengthen and build capacity of families and carers who are supporting persons with a disability;

(l) have regard for the needs of children with a disability and preserve and promote relationships between the child, their family and other persons (including carers) who are significant in the life of the child with a disability;

(m) be provided in a manner that respects the privacy and dignity of persons accessing the disability services;

(n) be provided in a way which reasonably balances safety with the right of persons with a disability to choose to participate in activities involving a degree of risk;

(o) have regard for any potential increased disadvantage which may be experienced by persons with a disability as a result of their gender, language, cultural or indigenous background or location;

(p) be designed and administered in a manner so as to ensure that persons with a disability have access to advocacy support where necessary to enable adequate decision making about the services they receive;

(q) be designed and provided in a manner which continues to reflect the role of the Secretary in providing and funding planning for persons with a disability;

(r) be accountable for the quality of those services and for the extent to which the rights of persons with a disability are promoted and protected in the provision of those services.

(4) If a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.

(5) It is the intention of Parliament that the principles specified in this section should wherever possible be given effect to in the administration of this Act and the provision of disability services.[29]

55 Section 6(1) of the Disability Act states the following principles with respect to persons with an intellectual disability:

The following principles apply specifically in respect of persons with an intellectual disability -

(a) persons with an intellectual disability have a capacity for physical, social, emotional and intellectual development;

(b) persons with an intellectual disability have the right to opportunities to develop and maintain skills and to participate in activities that enable them to achieve valued roles in the community;

(c) services for persons with an intellectual disability should be designed and provided in a manner which maximises opportunities for persons living in residential institutions to live in community based accommodation;

(d) persons with an intellectual disability living in a residential institution have the right to a high quality of care and development opportunities whilst they continue to reside in the institution;

(e) services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities;

(f) services for persons with an intellectual disability should be designed and provided in a manner that ensures that a particular disability service provider cannot exercise control over all or most aspects of the life of a person with an intellectual disability.[30]

56 Section 6(3)-(5) governs the use of standardised measurements in the assessment of intellectual disability.

57 Section 6(6)-(8) identifies some of the principal provisions of the Act relating to persons with an intellectual disability:

(6) Section 55 provides for planning for persons with an intellectual disability.

(7) Sections 86 to 88 provide for residential services for persons with an intellectual disability who require admission to a residential institution.

(8) Part 8 provides for persons with an intellectual disability who require compulsory treatment.

58 Both the Secretary and the nominated agency are disability service providers as that term is defined by s 3 of the Disability Act.[31]

59 The Disability Act also establishes an administrative structure which includes the establishment of the office of the Senior Practitioner (who is referred to in the proposed order sought from the Court). Section 23 provides:

(1) Subject to the Public Administration Act 2004, there is to be appointed by the Secretary as the Senior Practitioner a person who in the opinion of the Secretary has the appropriate clinical qualifications and experience to perform the functions and exercise the powers conferred on the Senior Practitioner by or under this Act.

(2) Subject to the general direction and control of the Secretary, the Senior Practitioner -

(a) is generally responsible for ensuring that the rights of persons who are subject to restrictive interventions and compulsory treatment are protected and that appropriate standards in relation to restrictive interventions and compulsory treatment are complied with;

(b) has the powers, duties, functions and immunities that are conferred or imposed on the Senior Practitioner by or under this or any other Act.

60 One of the functions of the Senior Practitioner pursuant to s 24 is:

(h) to evaluate and monitor the use of restrictive interventions across disability services and to recommend improvements in practice to the Minister and the Secretary; ...

61 Section 27 gives the Senior Practitioner special powers to investigate and monitor the use of restrictive interventions and compulsory treatment. They include the right to visit and inspect any part of the premises where disability services are being provided.[32]

62 Provision is also made for the role of community visitors[33] who may be appointed on the recommendation of the Public Advocate[34] and whose role is subject to ongoing supervision by the Public Advocate.[35]

63 The function of a community visitor expressly includes visiting any premises where a disability service provider is providing residential services and inquiring into the use of restrictive interventions and compulsory treatment.[36]

64 Parts 7 and 8 of the Disability Act govern the control of the use of restrictive interventions (including seclusion) upon persons with a disability.

65 Restrictive interventions are defined as follows:

restrictive intervention means any intervention that is used to restrict the rights or freedom of movement of a person with a disability including -

(a) chemical restraint;

(b) mechanical restraint;

(c) seclusion; ...[37]

seclusion means the sole confinement of a person with a disability at any hour of the day or night -

(a) in any room in the premises where disability services are being provided of which the doors and windows cannot be opened by the person from the inside; or

(b) in any room in the premises where disability services are being provided of which the doors and windows are locked from the outside; or

(c) to a part of any premises in which disability services are being provided; ...[38]

67 The Secretary concedes that use of the calm down room within the house in which Beth is accommodated would constitute seclusion as defined.

68 Section 133(1) provides that pt 7 of the Disability Act applies to a person with a disability other than persons for whom a treatment plan is in force or is required to be prepared under pt 8.

69 Part 8 provides for compulsory treatment. Section 150A is headed 'Restrictions on liberty or freedom of movement'. It provides:

A disability service provider must not detain a person with an intellectual disability otherwise than in accordance with this Part.

70 'Detain' is broadly defined under the Disability Act:

detain, in Part 8, includes -

(a) physically locking a person in any premises; and

(b) constantly supervising or escorting a person to prevent the person from exercising freedom of movement; ...[39]

71 The Secretary submits that s 150A is not to be construed as precluding detention of children with an intellectual disability pursuant to the provisions which would otherwise apply to them under the CYF Act.

72 Because the Secretary is defined to be a disability service provider there is a potential inconsistency between the terms of the two Acts. In particular it may be recalled the Secretary has the following powers under the CYF Act:

• the power of the Secretary to act pursuant to s 172(1)(b) to exercise the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have;

• the right of the Secretary to sole custody of the child under s 172(2) of the CYF Act;

• the power of the Secretary under s 172(3) of the CYF Act to detain without warrant any child who is in the custody or under the guardianship of the Secretary; and

• the placement powers of the Secretary and in particular the power to place a child in a SWS pursuant to s 173(2)(b).

73 There is also a potential inconsistency between the purposes governing the exercise of the Secretary's powers under the two Acts. Under the CYF Act the best interests of the child are the paramount consideration. On the other hand, pt 8 of the Disability Act is substantially directed towards the detention of and restriction of disabled persons in order to avoid the significant risk of serious harm to others.

74 Before addressing pt 8 it should be stressed that the evidence as a whole does not demonstrate Beth is at significant risk of causing serious harm to others if she is not detained. Rather it shows that she is at significant risk of causing serious harm to herself and of some ongoing risk of causing harm to others if not detained.

75 Division 1 of pt 8 of the Disability Act provides for residential treatment facilities and stipulates that a person with a disability may only be admitted to such a facility if the Secretary is satisfied of a number of matters which focus on the risk of harm to others and may or may not be congruent with the best interests of the child:

(1) A person with a disability may only be admitted to a residential treatment facility if the Secretary is satisfied that -

(a) the person has an intellectual disability; and

(b) the person presents a serious risk of violence to another person; and

(c) all less restrictive options have been tried or considered and are not suitable; and

(d) the residential treatment facility can provide services for the treatment of the person with a disability and that treatment is suitable for that person; and

(e) the Senior Practitioner has been notified of the proposed admission; and

(f) an order specified under subsection (2) applies to the person enabling compulsory treatment to be provided.

(2) For the purposes of subsection (1)(f), the following orders are specified -

(a) a residential treatment order made under the Sentencing Act 1991;

(b) a parole order made under the Corrections Act 1986;

(c) a custodial supervision order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

(d) an order transferring the person from a prison under section 166;

(e) an extended supervision order made under the Serious Sex Offenders Monitoring Act 2005;

(f) a supervision order or interim supervision order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009.[40]

76 The purpose of div 5 is stated by s 183:

The purpose of this Division is to provide for the making of a civil order, a supervised treatment order, to enable the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.

77 Part 8 provides generally for residential treatment directed to people involved in the criminal justice system.[41]

78 After the provisions of s 152 which relate to the custodial situations to which I have already referred, div 2 of pt 8 provides for leave arrangements relating to residential treatment order residents. Division 3 provides for security residents comprising prisoners and others lawfully detained in custody. Division 4 relates to forensic residents detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

79 On the other hand, div 5 provides more generally for the making of supervised treatment orders and div 6 provides for restrictive interventions under treatment plans prepared under this part of the Act.

80 Insofar as supervised treatment orders[42] are concerned, the Victorian Civil and Administrative Tribunal ('VCAT') can only make a supervised treatment order pursuant to s 191(6) in the following circumstances:

VCAT can only make a supervised treatment order if VCAT is satisfied that -

(a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm;

(b) there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means;

(c) the services to be provided to the person in accordance with the treatment plan will be of benefit to the person and substantially reduce the significant risk of serious harm to another person;

(d) the person is unable or unwilling to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person;

(e) it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person.[43]

81 Section 190 requires the use of supervised treatment to be supervised by an authorised program officer (being a person either appointed by or approved by the Secretary).[44] Applications for supervised treatment orders can only be made by such persons (subject to the supervision of the Senior Practitioner)[45] and, in default of such an application, in appropriate circumstances by the Public Advocate.[46]

82 It can be seen that whether by reference to orders relating to persons in different categories of custody (s 152(1)(b)) or by reference to the notion of supervised treatment orders (s 191(6)), a fundamental pre-condition to the operation of pt 8 is that the person under a disability constitute either a serious risk of violence to another or significant risk of serious harm to others. These concepts are potentially in conflict with the notion of powers exercised for the paramount purpose of the best interests of a child.

83 In my view s 150A must 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.

84 The first exception flows from the very nature of the parens patriae jurisdiction to which I shall shortly turn. That jurisdiction is intended to supplement the care and protection of vulnerable members of the community where amongst other things relevant statutory provisions would not adequately do so. The jurisdiction is not excluded by the terms of the Disability Act for reasons I shall explain below.

85 Although it may be strictly unnecessary to decide the point, I am also of the view that s 150A, which makes general provision with respect to persons under an intellectual disability, must be subject to a potential exception with respect to that class of such persons comprising children who are subject to a special vulnerability because of their age and in respect of which the CYF Act provides for orders for compulsory treatment only in circumstances which are in their best interests.

86 I have reached this view despite the fact that, as the Public Advocate submits, it is possible to hypothesise factual scenarios under which the provisions of the Disability Act could be appropriate to deal with a child.

87 In Saraswati v R,[47] Gaudron J stated:

It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict.),[48] per Fullagar J, and per Windeyer J.[49]

88 A later Act is not to be interpreted as impliedly withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.[50]

89 In Coco v R,[51] Mason CJ, Brennan, Gaudron and McHugh JJ said:

The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.[52]

90 In the present case the Court was not referred to any extrinsic materials supporting the view that it was the intention of Parliament by s 150A of the Disability Act to override the provisions of the CYF Act.

91 A primary objective of the Disability Act is to advance the inclusion and participation in the community of persons with a disability.[53] In turn the Act adopts principles which acknowledge that persons with a disability have the same rights as other members of the community. In particular, s 5(1) and (2)(a)-(d) state:

(1) Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.

(2) Persons with a disability have the same right as other members of the community to -

(a) respect for their human worth and dignity as individuals;

(b) live free from abuse, neglect or exploitation;

(c) realise their individual capacity for physical, social, emotional and intellectual development;

(d) exercise control over their own lives; ...

92 This framework supports the view that children with a disability should have the same rights to care and protection in their best interests as children who do not. If this is to occur then the protective provisions of the CYF Act must be given application to them.

93 Section 5(3), which recognises that the needs of disabled persons may differ at different stages of their lives, is also consistent with this view, as are the provisions of s 6(1)(d) and (e) referred to above.

94 Section 17(2) of the Charter also supports this construction. It provides that Beth has the right to such protection as is in her best interests and is needed by her by reason of being a child.

95 In turn s 32(1) of the Charter provides that, so far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

96 Conversely, although there may be a tension in this case between s 17(2) and the liberty right contained in s 21(1) of the Charter, the construction I prefer would not be contrary to the specific liberty rights contained in s 21 of the Charter which include:

(2) A person must not be subject to arbitrary arrest or detention.

(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

97 The application of the provisions of the CYF Act would not result in either arbitrary detention[54] or deprivation of liberty other than in accordance with procedures established by law.

98 The overlap between the literal terms of s 150A and the provisions of the CYF Act arises from the Secretary's choice to use the nominated agency - as a disability service provider - to operate the house. It would be anomalous if the Secretary could not choose the nominated agency as an out of home carer under the CYF Act because it is a registered disability service provider.

Part 7 of the Disability Act

99 If it is accepted that pt 8 of the Disability Act does not apply to Beth, then she is not a person for whom a treatment plan is in force or required to be prepared under pt 8[55] and, as the proposed order records under 'OTHER MATTERS', she falls within the terms of s 133(1):

This Part applies to persons with a disability (other than persons for whom a treatment plan is in force or is required to be prepared under Part 8).[56]

100 Section 133(2) of the Disability Act describes the mechanisms which the Disability Act adopts with respect to restrictive interventions.

The purpose of this Part is to protect the rights of persons to whom this Part applies by ensuring that restrictive interventions are -

(a) included in behaviour support plans for those persons only in accordance with this Part; and

(b) used on those persons only if the requirements imposed by this Part are complied with.[57]

101 Sections 134 and 135(1) and (4) relevantly provide as follows:

134 Use of restrictive interventions

A disability service provider must not use a restrictive intervention on a person to whom this Part applies unless there is in force an approval under section 135.

...

135 Approval to use restrictive interventions

(1) A disability service provider, other than the Secretary, who proposes to use restrictive interventions in the provision of a disability service must apply to the Secretary for approval.

...

(4) In the case of a disability service in respect of which the disability service provider is the Secretary, the Secretary -

(a) is to be taken to be approved to use restrictive interventions; and

(b) must ensure that an Authorised Program Officer is appointed for the disability service; and

(c) must approve the title of any position and the name of the holder of the position to be appointed as an Authorised Program Officer.

102 In turn s 139 describes the role of authorised program officers:

(1) An Authorised Program Officer must ensure that any restrictive intervention used on a person to whom this Part applies in the provision of a disability service for which the Authorised Program Officer is responsible is administered in accordance with this Part.

(2) A disability service provider must advise the Senior Practitioner of the name and qualifications of any person appointed as an Authorised Program Officer in the manner and within the period determined by the Senior Practitioner.

(3) The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer.

103 Section 140 governs the use of restraint and seclusion:

Unless section 147 applies, restraint or seclusion can only be used on a person to whom this Part applies -

(a) if the use of restraint or seclusion is necessary -

(i) to prevent the person from causing physical harm to themselves or any other person; or

(ii) to prevent the person from destroying property where to do so could involve the risk of harm to themselves or any other person; and

(b) if the use and form of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances; and

(c) if the use and form of restraint or seclusion -

(i) is included in the person's behaviour support plan; and

(ii) is in accordance with the person's behaviour support plan; and

(iii) is not applied for longer than the shorter of the following periods -

(A) the period of time that has been authorised by the Authorised Program Officer; or

(B) the period of time during which the use of the seclusion or restraint is necessary under paragraph (a); and

(d) if seclusion is to be used -

(i) the person is supplied with bedding and clothing which is appropriate in the circumstances; and

(ii) the person has access to adequate heating or cooling as is appropriate in the circumstances; and

(iii) the person is provided with food and drink at the appropriate times; and

(iv) the person is provided with adequate toilet arrangements; and

(e) if any other requirements imposed by the Senior Practitioner are complied with.

104 It can be seen that the requirement under s 140(a) is potentially inconsistent with the specific provisions of the CYF Act relating to the Secretary's powers and with the paramount principle of best interests of the child which governs discretionary decision making under the CYF Act. On the other hand, its requirements should in fact be met in Beth's case (although not necessarily on a continuing basis). In particular s 140(a), unlike pt 8, envisages the use of seclusion or restrictions inter alia to prevent a person causing physical harm to themselves or others, and does not set the requirement for the risk of harm to others in terms of 'significant risk of serious harm'.

105 In turn, s 141 requires the development of a behaviour support plan in circumstances where the criteria of s 140(a) and (b) are satisfied and it is proposed to exercise powers under s 140:

(1) This section applies if a disability service provider providing a disability service to a person to whom this Part applies -

(a) is satisfied that the criteria specified in sections 140(a) and 140(b) apply; and

(b) proposes to use restraint or seclusion on the person.

(2) The disability service provider must develop a behaviour support plan for the person to whom this Part applies that includes provisions which -

(a) state the circumstances in which the proposed form of restraint or seclusion is to be used for behaviour support;

(b) explain how the use of restraint or seclusion will be of benefit to the person;

(c) demonstrate that the use of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances.

(3) In preparing the behaviour support plan, the disability service provider must consult with -

(a) the person for whom the behaviour support plan is prepared;

(b) if the person for whom the behaviour support plan is prepared has a guardian, the guardian;

(c) if other disability service providers provide disability services to the person for whom the behaviour support plan is prepared, a representative of each disability service provider;

(d) any other person that the disability service provider considers integral to the development of the behaviour support plan.[58]

106 Section 141(2) in effect requires a behaviour support plan to demonstrate that it is in the best interests of the person for whom it is prepared, including demonstrating that the use of restraint or seclusion is the option which is the least restrictive of the person as is possible in the circumstances.

107 The Act vests the ultimate decision as to whether a restrictive intervention is necessary in the Secretary[59] and requires the disability service provider to prepare a behaviour support plan where a restrictive intervention is proposed.[60]

108 Sections 142 to 146 provide a series of review processes with respect to the behaviour support plan. They require a periodic review of a behaviour support plan by a disability service provider;[61] the provision of an independent person to explain to a person affected their rights in respect of a proposed use of restraint or seclusion;[62] the provision of an independent person to advise a person to whom this part of the Disability Act applies with respect to the proposed use of restraint or seclusion in the person's proposed behaviour support plan; the supervision of this process by the Public Advocate;[63] approval of the use of restraint or seclusion in the behaviour support plan by the Authorised Program Officer;[64] and review of the behaviour support plan by VCAT.[65]

109 Section 147 provides for the use of restraint or seclusion in an emergency. The opening words of s 140, which provide that unless s 147 applies restraint or seclusion can only be used on a person to whom pt 7 applies if the subsequent requirements of s 140 are satisfied, are buttressed by s 149 which provides:

A disability service provider who, except as provided in section 140 or 147, applies restraint or seclusion to a person to whom this Part applies is guilty of an offence against this Act.[66]

110 The combination of ss 140 and 149 raise a parallel problem of potential inconsistency with the CYF Act to that raised by the provisions of s 150A.

111 In the present case, I am satisfied that the scheme of pt 7 is capable of application to Beth subject to the overriding supplementary authorisation of the Court by way of an order made pursuant to the parens patriae jurisdiction. Because the Secretary accepts that a behaviour support plan can and should be prepared for Beth which includes within it the case and stability plans that would otherwise be required under the CYF Act, there is no necessary inconsistency between the application of pt 7 and the CYF Act.

112 Nevertheless the same considerations that support the view that pt 8 of the Disability Act is to be read subject to the specific provisions of the CYF Act would also support the same conclusion in respect of pt 7 in the case of inconsistency in the operation of the two statutory schemes.

113 In turn ss 140 and 149 are to be construed as implicitly subject to exceptions properly authorised under the CYF Act.

114 Likewise, for reasons I shall now explain, the provisions of pt 7 must also be read subject to the terms of any order in the parens patriae jurisdiction of this Court supplementing the provisions of the CYF Act.

115 The parens patriae jurisdiction of this Court derives from the Royal prerogative. It is directed to the protection of children who are not legally competent to look after themselves. As Brennan J stated[67] in Marion's case:[68]

That jurisdiction was originally vested by the royal prerogative in the English Court of Chancery and is vested in courts whose jurisdiction is defined by reference to the jurisdiction of that Court as it stood before the warrant delegating the prerogative power to the Lord Chancellor was revoked. The nature of the jurisdiction was stated by Lord Esher MR in Reg v Gyngall:

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner in which a wise, affectionate, and careful parent would act for the welfare of the child.

The parens patriae jurisdiction has become essentially protective in nature and protective orders may be made either by the machinery of wardship or by ad hoc orders which leave the guardianship and custody of the child otherwise unaffected. The court is thus vested with a jurisdiction to supervise parents and other guardians and to protect the welfare of children.

Although the jurisdiction is extremely broad, it is exercised cautiously in the manner stated by Fitzgibbon LJ in In re O'Hara and adopted by the House of Lords in J v C:

In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously, not as if it were a private person acting with regard to his own child, and acting in opposition to the parent only when judicially satisfied that the welfare of the child requires that the parental right should be suspended or superseded.[69]

116 In Victoria, the Supreme Court has such jurisdiction and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.[70] Immediately before the commencement of the Supreme Court Act 1986 on 1 January 1987, s 85(2) and (3) of the Constitution Act 1975 defined the jurisdiction of the Supreme Court by equating it to the jurisdiction of the Superior Courts in England and of the Lord High Chancellor including jurisdiction in relation to probate and matrimonial causes and administration of assets at or before the commencement of Act No 502. That Act commenced on 4 January 1875.

117 The nature of the parens patriae jurisdiction was further described by Mason CJ, Dawson, Toohey and Gaudron JJ in Marion's case as follows:

As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J in Re Eve. His Lordship pointed out that '[t]he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.' In Wellesley v Duke of Beaufort, Lord Eldon LC, speaking with reference to the jurisdiction of the Court of Chancery, said:

[I]t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them.

When that case was taken on appeal to the House of Lords, Lord Redesdale noted:

Lord Somers resembled the jurisdiction over infants, to the care which the Court takes with respect to lunatics, and supposed that the jurisdiction devolved on the Crown, in the same way.

Lord Redesdale went on to say that the jurisdiction extended 'as far as is necessary for protection and education'.

To the same effect were the comments of Lord Manners who stated that '[i]t is ... impossible to say what are the limits of that jurisdiction'. The more contemporary descriptions of the parens patriae jurisdiction over infants invariably accept that in theory there is no limitation upon the jurisdiction. That is not to deny that the jurisdiction must be exercised in accordance with principle. However, as appears from the authorities discussed earlier, the jurisdiction has been exercised in modern times so as to permit medical operations on infants which result in sterilization.

No doubt the jurisdiction over infants is for the most part supervisory in the sense that the courts are supervising the exercise of care and control of infants by parents and guardians. However, to say this is not to assert that the jurisdiction is essentially supervisory or that the courts are merely supervising or reviewing parental or guardian care and control. As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power.[71]

118 Their Honours went on to describe 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.[72]

119 They went on to recognise that the phrase 'the best interests of the child' is imprecise but observed that it is no more so than the 'welfare of the child' and other concepts with which courts must grapple.[73]

120 A recent example of the exercise of the jurisdiction is the decision of White J in Children, Youth and Women's Health Services v YJL,[74] authorising the giving of a blood transfusion by a hospital to a 10 year old boy undergoing chemotherapy treatment, against the wishes of the boy and his parents who were Jehovah's Witnesses.

121 In Re Thomas,[75] Brereton J contrasted that aspect of the jurisdiction which authorises a particular course of action which the parents or guardian of a child do not wish to adopt and that which authorises acts beyond the powers and rights of a guardian.

122 The latter category is exemplified by Marion's case,[76] in which the High Court held that the Court's power extended to authorising sterilisation of a child in circumstances where the parent or guardian could not consent.[77]

123 In Re Thomas,[78] the Director General of the Department of Community Services (NSW) sought orders authorising the detention of a 16 year old boy indefinitely in a secure unit and the restraint and medication of him as circumstances required. Brereton J held that the jurisdiction extended to making orders of the type sought and observed:[79]

Orders interfering with personal integrity and liberty have been made sufficiently often now that it must be accepted that the jurisdiction permits them. In Re W[80] the Court of Appeal upheld a court order for treatment for a young person with anorexia nervosa, holding that her wishes, while relevant, were not conclusive. Re C[81] also involved a young woman with anorexia nervosa, who was ordered by the Court to remain at a clinic for treatment until discharged by her doctor or further order - and the court's order provided for the use of reasonable force, if necessary, to detain her. Marion's Case, as has been mentioned, resulted in the authorisation of the permanent procedure of hysterectomy, a serious invasion of personal integrity. In DoCS v Y, Austin J made orders to the effect that the child be returned to the Children's Hospital without her consent, to resume a course of treatment for anorexia nervosa, and authorising the hospital staff to detain her, using reasonable force if necessary. Orders substantially similar to those proposed in the present case have been made by this Court in Re Christina[82] and Re Nellie.[83]

124 It is common ground between the parties that the provisions of the CYF Act and Disability Act do not exclude the parens patriae jurisdiction.

(1) The sole right to custody and guardianship granted to the Secretary pursuant to s 172 of the CYF Act does not exclude the jurisdiction.[84]

(2) The jurisdiction extends to making orders which a parent or guardian might not make.[85]

(3) By its nature the jurisdiction may be invoked to supplement a statutory scheme, as Mason J explained in respect of broadly analogous legislation in Carseldine & Anor v The Director of the Department of Children's Services:[86]

Although the legislative scheme is far-reaching I do not think that its extensive character is a sufficient ground for concluding that the prerogative jurisdiction of the Supreme Court is entirely displaced. There may be occasions for its exercise in aid of the Director's statutory responsibilities or when it appears that the Director is not discharging his responsibilities or exercising his powers in conformity with the Act. The vesture of wide and general powers in the Director is not inconsistent with the continued existence of the Supreme Court's inherent jurisdiction, notwithstanding a reluctance, or perhaps an incapacity, on the part of the Court to exercise that jurisdiction when the Director is acting in conformity with the Act and is not invoking the assistance of the Court.

(4) It would take the clearest language to displace the Court's jurisdiction. In Johnson's case[87] Barwick CJ put the common law principle in the following terms:

This Court has been quite emphatic in expressing its view that, if the Parliament wishes to take away from the Court its power of supervising the guardians, and protecting the welfare, of children, it must do so in unambiguous language, in language which is either express or such as inescapably implies that expression of intention on the part of the Parliament: see Minister for the Interior v. Neyens, and Carseldine v. Director of Children's Services. It is, of course, to be conceded that in these more populous and complex days the courts may not be able themselves to attend to the detail involved in the protection of children and in ensuring their welfare. Consequently, it has become necessary for statutes to provide for departmental officers and staff to take care of children who are in need of care and attention. But it is to my mind supremely important that there should remain in the courts the ability in appropriate cases to supervise the actions and the performance of the duties of the public servants to whose care such children are committed. If the legislatures, in their wisdom, should decide that the court ought to be entirely excluded and the matter be left entirely to departmental officers then, of course, Parliament can say so. For my part, it will need to do so in the clearest language.[88]

(5) This approach is now reinforced by s 85(5) of the Constitution Act 1975 which provides:

A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless -

(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; ...

There is no such statement bearing on the parens patriae jurisdiction in either the CYF Act or the Disability Act.

125 The Secretary's powers as guardian or custodian would not extend to indefinite or extended confinement of a 16 year old. Moreover, the time limitations implicit in s 173(2)(b) upon the power of the Secretary to place Beth in a SWS mean that, as in Thomas's case, the order sought exceeds the statutory powers of the Secretary.[89]

126 Nevertheless the very fact that the orders sought do not fall within the legislative scheme which ordinarily governs the secure detention of children, points strongly to the need first to recognise the gravity of the deprivation of liberty which is in issue and the corresponding necessity for its full and adequate justification and secondly to exercise great caution in making the order sought.[90]

127 In summary, I accept the submissions of the Secretary that the authorities demonstrate that the parens patriae jurisdiction:

(c) is governed in its exercise by the consideration of the best interests of the child;

(e) is not excluded by the provisions of the CYF Act or the Disability Act.

128 The factual basis of the Secretary's application is substantially summarised in the affidavit of Robyn Maree Miller, who is the Principal Practitioner with the Department of Human Services.[91]

129 Beth first came to the attention of child protection authorities in Queensland when she was a small infant. She was hospitalised as an infant due to malnourishment from inadequate food and fluid intake. Her mother had been putting water into the baby bottle. Developmental delays were noted from Beth's infancy.

130 Her mother has a dual diagnosis of intellectual disability and mental illness including schizophrenia. She has a history of alcohol and drug abuse, homelessness and transience.

131 Beth's father has a history of violence, alcohol and other drug issues, homelessness and transience. He also has a criminal history.

132 In October 1997, when Beth was only eight months old, she and her older brother were placed in out of home care in Queensland. Subsequently orders were made granting guardianship to the State. Since that time she has been the subject of guardianships either in Queensland or, since 1 August 2001, in Victoria.

133 Between 1998 and 2010 Beth had a number of kinship placements. She was initially placed in her grandmother's care but this proved inadequate and a series of incidents of inadequate supervision, and exposure to physical, verbal and emotional violence and sexual abuse occurred.

134 In October 2005 Beth was placed in the care of one of her aunts. Between 2006 and 2008 Beth's behaviour improved significantly and a number of previous behaviours including eating non-food items; wetting and soiling herself and smearing faeces on school walls; and hitting and kicking ceased or reduced in frequency. Beth presented well at school and made good progress.

135 In 2009 whilst still in the care of her aunt Beth's behaviour again deteriorated and her school reported that she was wetting herself again, smearing faeces on the wall, making herself vomit, eating non-food items, harming herself by putting objects in her mouth such as drawing pins and scratching herself. There were further reports of sexualised behaviours and anxiety.

136 In February 2010 Beth disclosed being hit with a poly pipe and a leather belt at home and being sexually assaulted by her cousin. She was then 13 years old. She was removed from her aunt's care. After February 2010 Beth was placed primarily in residential care but her behaviour resulted in numerous admissions to the SWS, as well as periods in police custody and in the Youth Justice Custodial Services at Parkville.

• From February 2010 to June 2012 Beth was placed in a group residential home in a country town. During that time she was placed in SWS on five occasions following incidents of self-harmful and violent behaviour.

• In June 2012 Beth was placed in the Youth Justice Custodial Services at Parkville from 15 June 2012 to 21 June 2012.

• Following this she was placed in a one to one placement in a country town under the leadership of an experienced senior manager, MHO.

• She then returned to the Youth Justice Custodial Services in Parkville.

• Between 19 July 2012 to 24 July 2012 she was placed in SWS.

• Between 24 July 2012 to 26 July 2012 she was placed in a specialised residential unit but following assaults upon staff and abscondment she was arrested by police.

• Between 26 July 2012 and 13 August 2012 she was placed in SWS.

• Between 13 August 2012 and 15 August 2012 another attempt was made to place Beth in a specialised residential unit. Again, she assaulted staff and absconded. Whilst absent she engaged in an act of prostitution and was subsequently sexually assaulted.

• On 23 and 24 August 2012 she was placed in SWS and whilst being transported she assaulted her carers and urinated in the car. She was again arrested by police.

• She remained in SWS from 25 August 2012 to 25 October 2012.

• On 25 October 2012 she was taken to Werribee Zoo but caused damage to a car and attempted to abscond.

• Beth then remained in SWS until her placement in her current accommodation.

138 In November 2012 Ms Miller made the following assessment of Beth's care and treatment needs:

1. Throughout her placements in residential care, [Beth]'s behaviour has been very concerning and difficult to manage and has continued to deteriorate. There are multiple incident reports, particularly since January 2011, involving [Beth] absconding from placement, exhibiting physical violence toward staff, defecating on the floor, running onto the road, being abusive and damaging property. In addition, [Beth] has engaged in increasingly concerning sexualised behaviours.
2. I consider that a number of factors have contributed to [Beth]'s behaviour:

75.1 [Beth] has a history of disrupted attachments. She was removed from her parents at an early age (temporarily at eight months and permanently at 15 months). Her attachment to her grandmother [A] was disrupted when [Beth] was removed from her care and placed in the care of [V] at age 8. [Beth] was then removed from kinship care at age 13.

75.2 From a young age, [Beth] has experienced, and been a witness to, physical, emotional and sexual abuse. She has had to develop significant coping skills to deal with the trauma she has experienced. These coping skills have developed into the behavioural difficulties [Beth] now experiences.

1. [Beth]'s behaviours are classic 'fight or flight' behaviours. During periods of uncertainty and stress, [Beth] either absconds (flight) or becomes abusive to her carers (fight). [Beth] has not developed the skills to 'self-soothe' or calm down in a way that is not harmful to either herself or those around her.
2. The instability of [Beth]'s placements (both kinship placements and residential care placements) and [Beth]'s exposure to aversive events that are beyond her control have lead [Beth] to seek out a secure environment. [Beth] appears to find SWS reassuring and comforting, in part because it assures her that potential abusers cannot reach her. Consequently, [Beth] has established a concrete pattern of sabotaging community based placements in order to be placed in SWS where she does not have to endure unanticipated trauma and abuse.
3. I also consider that a number of factors have contributed to the deterioration in [Beth]'s behaviour since 2010:

78.1 [Beth] experienced the loss of her grandmother [A] in October 2010 and there were difficulties in having access to [A] in the months prior to this due to [A] being unwell. Within a few months of [A's] death, on 29 December 2010, [Beth]'s grandfather [P] also died. These losses have had a profound effect upon [Beth] and records show a marked escalation in her behaviour. Every time I have seen [Beth] face to face, she has referred to the loss of her grandmother and frequently cries.

78.2 During this period, [Beth]'s mother [K] returned to [the area where Beth was living] after many years of no contact. [Beth]'s mother's contact with her then was very unreliable. [K] was living with a new boyfriend. [Beth] has disclosed very serious sexual abuse by [K's] boyfriend.

78.3 [Beth] has also expressed considerable confusion and grief over the loss of contact with her two brothers. However, she also expresses heightened fear and a history of conflict with both of them.

78.4 Some time after [A] died, [Beth]'s father resumed contact with [Beth], but then abruptly rejected her. This was distressing for [Beth] and further destabilised her.

78.5 [V] had been unwilling to have access with [Beth] or have ongoing contact.

78.6 [Beth]'s brother [J] had been placed in the unit with her for a period of time and this co-incided with a deterioration in her behaviour.

78.7 [Beth] moved into adolescence, which is a particularly difficult period for someone who has been exposed to the level of sexual abuse and neglect that [Beth] has experienced.

1. Any placement for [Beth] needs to address [Beth]'s needs as follows:

79.1 A safe environment - Before [Beth] can be re-established in the community, she must learn to feel safe within the community. In order to do so, [Beth] needs to rebuild her trust with the world around her, which requires her to feel safe. Furthermore, it is vital that [Beth] is, in fact, safe. Unfortunately, at present, the biggest risk to [Beth] is herself and, in particular, the risk to which she exposes herself when she absconds. [Beth]'s current circumstances therefore mean that, in order for [Beth] to be safe, it is necessary that staff are able to contain [Beth]. A facility with the capacity to contain [Beth] will provide [Beth] with the opportunity to deal with distress within a safe environment, rather than absconding and being exposed to harm in the community. This will enable [Beth] to learn how to deal with distress in an appropriate manner, rather than absconding or assaulting others.

79.2 A stable environment - [Beth] needs consistency and stability, in terms of staff and routine. Consistency of staff and routine will assist [Beth] to feel safe and to develop attachments and trusting relationships with staff.

79.3 Capacity to receive treatment and learn skills - [Beth] needs to receive clinical treatment to address her ability to self-regulate her emotions and behaviours. [Beth] also needs to identify alternative ways to express her fears, confusion and frustration and her ability to engage prosocially with others. [Beth] needs to learn life skills and improve her self-esteem and motivation through participation in activities. None of this is possible if [Beth] absconds from her placement or if staff spend all of their time trying to prevent [Beth] from absconding.[92]

139 After canvassing each of the options for Beth's ongoing care, Ms Miller further expressed the following opinion concerning the proposed placement:

1. Following extensive consultations with legal services, specialist service providers, a number of clinicians, as well as input from the Office of Senior Practitioner for Disability Services and the Child Safety Commissioner,[93] DHS has developed a proposed plan for the future care of [Beth].
2. The plan involves 1:1 placement in a residential unit. The unit will be located on [the nominated agency]'s campus... Since the unit is located on [the nominated agency]'s campus, there will be minimal exposure to neighbours and maximum access to staff who will be able to provide relief or assistance in the event of an incident.
3. The unit will be able to be locked so as to physically prevent [Beth] from absconding. This will also minimise the extent to which staff need to physically intervene with [Beth], thereby reducing risk of harm both to [Beth] and to staff.
4. Within the residential unit, there will be a calm down room that will be able to be utilised to enable [Beth] to calm down, rather than abscond (which is her usual behaviour) or assault staff.
5. It is proposed that a careful transition process occur, so that new staff of the residential unit will be introduced to [Beth] while she is still in SWS. In addition, staff are already taking [Beth] to [the area in which the residential unit is located] for activities that will continue into the new placement. For example, [Beth] loves animals and has now commenced a [horse] riding for the disabled program ...
6. The property is fenced, which will enable [Beth] to be outside but still secure. It will also enable [Beth] to have a dog that is specially trained for people with disabilities. This will be carefully planned using a staged approach that is safe and well considered. This would be very significant for [Beth], who has a long and early history of disrupted attachment. [Beth] would love a puppy and it would give her something of her own to care about and to be loved by.
7. In the long term, the goal is to gradually reduce the level of security in her unit and to increase [Beth]'s engagement in activities in the community, including resuming attending school or a day program. Discussions have been had with education staff and it is proposed to recruit a special teacher to attend at the residential unit for two hours a day. When [Beth] is ready, the teacher could then move with [Beth] to the special school. My hope is that this will happen within the next three to six months.
8. My hope is that [Beth] will be able to maintain safe connection with activities she has recently begun in the community, like [the aforementioned horse riding program], so that she will continue to have time in the community as soon as she moves to the new facility. However, there needs to be close clinical oversight of the transition to ensure that she is ready for each step and experiences success and positive rewards.
9. I would also hope that, with consistent nurturing care, [Beth]'s anxiety and volatility will reduce. As this occurs and [Beth] learns more appropriate ways of regulating her behaviour and managing distress, the level of containment will be able to be reduced.
10. DHS have developed a plan for supporting [Beth] and responding to her behaviours within the proposed placement. The plan is still being refined. ...
11. I have spoken directly with Dr Richard Kefford and Dr Helen Driscoll regarding the proposed placement and treatment and support plan. They are unequivocal in their support for the proposed placement and consider that [Beth] requires physical containment in order to enable her to be emotionally contained and for her behaviours to stabilise.[94]

140 Beth's history is amplified by the affidavit of MHO,[95] who describes his experience when engaged to act as Senior Carer in a residential placement in mid-2012. His evidence confirms the extent to which by that point in time Beth had been traumatised by her previous experiences:

1. Based on my observations of [Beth], I believe that she experienced a lot of flashbacks. Various things would trigger a flashback. For example, passing a street where she had been raped triggered memories of the rape; [Beth] experienced car headlights shining in to the house at night as a signal that her brother was coming to attack her. When [Beth] experienced a flashback, a lot of fear and aggression would come out and she would become violent and try to abscond. While she was trying to abscond, she would assault staff.[96]

141 He describes the struggle he faced in preventing Beth from absconding:

1. The staff and I spent the majority of the three weeks trying to keep [Beth] in the home and safe. She always wanted to leave the home without staff. Every disagreement and conflict was about [Beth] not being allowed to go out on her own. From the time she got up in the morning to the time she went to bed, [Beth] would argue that she should be allowed to go out on her own. During these arguments, [Beth] did not mention her family. [Beth] would try to bash past the staff to get to the door. Sometimes, she would realise that she couldn't get out, get bored and participate in another activity.
2. While I was there, although [Beth] absconded, she did not go missing. However, [Beth] went missing on my days off. During the first week of the placement, I planned to go home for a few days. I was half way home when I received a telephone call and was told that she had absconded and been arrested by the police.
3. Although I could manage [Beth] by giving her constant line-of-sight supervision, it was exhausting. Had the placement not ended early, I would not have been able to keep it up for the full six weeks I was engaged to work with [Beth].

1. [Beth] absconded on a daily basis, including at night. [Beth] absconded out of the window by taking off the flyscreen and/or breaking windows. She would offer to check the mailbox or take the garbage out and then just run. She broke locks on doors. There was an internal door leading from the house to the garage; she broke the lock on it. [Beth] is very strong and she can break doors and locks. When we were in the car, she would hold staff by the hair and bash them in the head. When the driver stopped the car to separate [Beth] and the staff member, [Beth] would abscond. I understand that [Beth] has done this on a freeway, although this incident did not occur during her placement with me. [Beth] would also just hop out of the car when it was moving.

1. At other times, [Beth] put herself at risk. [Beth] has no road skills, so when she got to a road, including the highway, she would walk straight into the middle of it. She nearly got hit by a car or a truck a number of times, including one occasion when the only reason she wasn't hit was because the car braked suddenly. [Beth] would flag down cars and trucks, especially those driven by men. She would tell the drivers that she had been kidnapped and ask to get in the car or truck. She would say to the drivers words to the effect of 'I like you, you're pretty, can you look after me'. [Beth] offered sex for money to anyone in the street. She would take all of her clothes off in the street. If we hadn't been following [Beth], her behaviour would have exposed her to being assaulted and exploited.[97]

1. [Beth] threw knives at staff, including myself. [Beth] threw cups at staff, including cups of hot tea. [Beth] hit me and other staff with sticks or anything she could pick up. She threw the TV, frying pans, anything she could pick up. [Beth] would find glass or sharp tiles and try to cut staff.
2. [Beth] made numerous holes in the walls of the house. She ate the plaster. She ate through the kitchen wall into the lounge room and made a hole big enough for a person to crawl through. [Beth] pulled wires out of the walls. The exposed wires were another danger to [Beth].

1. The last day of the placement was horrific. [Beth] destroyed the house. We tried the normal strategies for managing her behaviour, but nothing worked. She really beat into me; she was spitting at me and hitting me worse than ever before. She threw rocks at me and tried to cut me. She ran outside the home into the court. She picked up the solar garden lights in the neighbour's garden and threw them at me. She took all of her clothes off and said she was going to go and have sex.
2. We had to call the police. This was always a last resort; I hated seeing [Beth] taken away in handcuffs. The police came and she assaulted them. When they tried to place her in the van, [Beth] was punching and kicking at the officers and trying to resist getting in the van. It took two officers to get her in the van. The police took [Beth] to the ... Police Station.[98]

143 In oral evidence MHO confirmed that, when under his care, Beth continually placed both herself and her carers at 'extreme risk'. There was no secure environment in which to implement effective strategies. Amongst other things, he described being with Beth after someone had raped her in terms which made clear the extent of the trauma to which she exposed herself when in unlocked residential accommodation.

144 The affidavit of Linda Saffron,[99] Senior Practitioner, Specialist Services, Disability Services, Department of Human Services,[100] elaborates the planning which was undertaken prior to the placement. Amongst other things, she prepared a care and support plan of 8 November 2011. This is an overall framework plan which is still operative. The plan provides for proactive support under a series of headings:

• transition from secure welfare to community setting;

• repairing reactive attachment disorder - help Beth to feel safe and secure;

• increase conditions that produce desired behaviour;

• develop coping skills - decrease the need to resort to soiling and smearing of faeces; and

• develop coping skills continued - decrease the need to resort to self-harming behaviours.

145 The plan contains specific guidelines relating to the use of restrictive interventions and the use of restraint and seclusion.

146 In addition a case and care plan of 15 November 2012 has been prepared by child protection staff of DHS which identifies staff roles and sets out:

• goals and measures directed to the provision of a care environment;

• goals and tasks directed to furthering Beth's emotional and behavioural development;

• goals and tasks relating to the enhancement of Beth's self care skills;

• goals and tasks relating to improving Beth's physical health;

• goals and tasks in respect of improving Beth's familial and social connectedness; and

147 A statutory case plan[101] of 4 March 2013, which includes a stability plan,[102] prepared by child protection staff of DHS, was also tendered in evidence. It includes overview of:

• the current case plan and whether it remains appropriate;

• whether the case plan and the placement in particular appropriately support Beth's long-term stability;

• access arrangements, if any, with Beth's family members;

• how Beth's developmental needs - which are addressed under the headings of emotional and behavioural development, physical health, self care, education and other - are being addressed;

• Beth's current situation, which includes reference to this proceeding;

• what has occurred since the previous case plan was finalised;

• the goals of the case plan and the tasks necessary to achieve those goals, which are in the areas of education, emotional and intellectual development, transition planning for when Beth ultimately leaves care, physical development and health, promoting Beth's development through education and other community-based social settings, and stability; and

148 Ms Saffron's oral evidence was that, from her first meeting with Beth, it has been evident Beth is crying out for confinement and containment which will give her a stable and secure environment in which to develop positive relationships.

149 In Ms Saffron's opinion Beth remains at great risk of suffering verbal, physical and sexual assault if she were permitted to go freely into the community. Conversely, Beth feels safe in her present situation.

150 The history of Beth's progress since placement in the house is described by a number of witnesses. JLW has been a Residential Supervisor in the house provided by the nominated agency for Beth.[103] She gives a very detailed description of Beth's behaviour and progress in the first seven weeks of her residency. She describes very material improvement in a number of behavioural areas.

1. In the first two to three weeks, there were many attempts by Beth to get out of the house. She kicked in the fence, tried to break the garage door, and dragged large pieces of furniture out into the yard in order to try and climb over the fence. She would yell 'l want out of here', telling us that she wanted to go back to Secure Welfare.
2. We dealt with this, and we removed the furniture that she was using. Although Beth is physically unable to climb over the fence, it was pretty unsafe for her to be standing precariously on the furniture while trying to get over the fence. We also had the fence reinforced so she was unable to kick holes in it. When this happened, Beth thanked the maintenance man and said 'Now I'm safe' or words to that effect.
3. In the first couple of weeks we made two attempts to take Beth on walks from the house. The first time we did this we had to take her back in. She freaked out, was very anxious and couldn't cope. The second time we tried to take her in the other direction. However, she headed toward the main road and threatened to get on the bus. We then managed to get her back into the house using a role play. We initially tried to talk to her, saying things like 'you need to turn around, come back Beth' but she wouldn't take direction. We had to block her to keep her away from the main road. Eventually Secure Welfare Staff had to restrain her. We then sat down with her and made up a role play game to get back to the unit. We used some junk mail from someone's mail box, and pretended we had to run away from the person who owns the junk mail before they could catch us. We managed to get Beth to join in and run back to the house with us.
4. The attempts to abscond have now stopped. Beth has not attempted to leave the house, or run from staff while on outings, in the last 3 or 4 weeks. She now says she is not going to leave her house.
5. The shift in this behaviour is illustrated by a couple of recent incidents:

22.1 About a week ago, the secure door to the side of the house had been left open after washing had been brought in from the clothes line. From that door, there is no further security. Once through an unlocked gate, Beth could have left the house. Beth saw that the door was open and went out through the door and the gate. However, she did not attempt to go any further, and a staff member was able to stand at the gate and talk to her. She came back into the house after about 10 minutes. That is a very significant step.

22.2 Also about a week ago, Linda Saffron visited Beth. Beth can be very quick, and is quite savvy. She managed to get Linda's swipe card, which opens all the security doors in the house. However, rather than attempting to get out of the house, she just went around swiping the doors and then gave the swipe card back.

1. In the first two to three weeks, Beth caused considerable property damage. Apart from damaging furniture when trying to get out of the house, she also broke three televisions as well as play stations, DVD players and many other items. On one occasion she kicked through the only plasterboard wall of the calm down room and got some paint which she poured out over things. The property damage has largely occurred when she has been angry and distressed.
2. In addition, when she first moved into the house, there were a number of floor to ceiling panelled windows that faced out of the house. In the first ten days, she broke every one of the lower windows. They were replaced and she broke them again. In my opinion she did this because she didn't think it was safe. Although she broke these windows, she did not try and break any of the glass windows that face the internal courtyard. Further, when these lower windows were turned into solid wails, she said to the builder 'Thanks for fixing the windows, now I'm safe', as she had when the fence was reinforced.
3. The property damage has diminished significantly. Beth has not broken a television or done any property damage in the last two weeks.
4. The first 3-4 weeks in the house were very intense. There were numerous attempts to assault staff. These incidents occurred with little or no warning, providing no opportunity for us to intervene and help Beth de-escalate. On these occasions, Beth sometimes had to be physically restrained and usually had to be physically escorted by staff to the calm down room. There appeared to be no remorse or any recognition that what she had done was wrong. She took the view that she had a disability and therefore her behaviour was okay.
5. Over the past 3-4 weeks the frequency and severity of these types of incidents has decreased. For example, there were a number of incidents where Beth has grabbed a bread and butter knife and threatened staff with it. These resulted in Beth having to earn her way back into the kitchen through good behaviour. Beth has not pulled a knife on staff in a few weeks.
6. As Beth has become more settled in her house and developed stronger relationships with staff, her behaviour has not escalated as quickly and there have been opportunities for co-regulation, where we work alongside Beth to help her de-escalate.
7. Quite often I can now prevent the situation escalating to an attempted assault by saying to Beth 'You are in my personal space, you need to take a step back', and she does. Previously, we wouldn't even have been able to have that discussion.
8. We have been teaching Beth a safety plan to help regulate her behaviour - if she is feeling she is getting angry or worked up, she should tell staff who are then able to help her take some deep breaths, get a glass of water, talk to her, or suggest she go to the calm down room. The ultimate aim is for self-regulation, whereby Beth is able to get her emotions under control on her own. Beth has recently taken herself to the calm down room on two occasions, which is very positive step.
9. Another significant step is that Beth is now much more likely to recognise that her behaviour is wrong and to apologise for it.
10. There have also been a number of improvements in Beth's behaviour at night.
11. Night time is a particularly difficult time for Beth. She often wakes with nightmares about her previous sexual assaults, and sometimes wets her bed. Every night before she goes to bed, we have to go through a regime to reassure Beth that the front door is locked.
12. When Beth first came to the house, she was often waking five or six times a night and was frequently wetting her bed. Initially, she did not want to sleep in her bedroom and was often sleeping in the lounge, possibly to be nearer to staff. When she woke up, she often asked for medication in order to help her get back to sleep, or she would watch a DVD.
13. Beth now sleeps in her bedroom every night, and is pretty good at going to bed at around 8.30pm each night. She now only wakes two or three times a night. After going to the toilet or getting a glass of water, she usually settles back to sleep. She still wets the bed sometimes, but not every night.
14. Until now, the staff at night did a 'stand up' shift. That is, they did not sleep. In light of the improvements in Beth's behaviour at night and the reduction in her night waking, we are now looking at moving to sleep over shifts. This would also assist in creating, as much as possible, a normalised home environment for Beth.[104]

151 She also describes the operation of the house and the procedures adopted to care for Beth. These include supervised activities outside the house, activities in the house, and providing choices for Beth.

152 There remain particular problems with continence issues, vomiting, threats of self-harm and inappropriate sexual behaviours. A formal education program has not yet been formalised. JLW deposes to the following future steps:

1. At this time, we have been focusing on getting Beth to feel safe and secure in her home. This will then provide a base from which we can move into therapy. Beth has suffered enormous trauma, grief and loss. There are signs that Beth may soon be ready to start this process. Another important future step will be Beth attending education or other activities with other adolescents, and learning how to regulate her behaviour in less familiar and secure situations in the community.
2. All of these steps will need to be carefully planned and implemented. I expect that there will be many ups and downs for Beth during this time. Maintaining a secure and stable home life throughout her transition to a normal life in the community will be very important.
3. In my view, Beth is benefiting from living in the supported house ... with its lock up facilities. However, the process by which Beth will be able to live in a house without lock-up facilities, and eventually transition into supported accommodation in the community, is a long one. There are likely to be many bumps along the way. While Beth is no longer attempting to abscond from the house, and is settling well, the physical security provided by the lock up facilities in the house is likely to be needed by Beth for a long time. Beth needs to know she is safe and secure. When she feels safe and secure, her anxiety levels and negative behaviours reduce.[105]

153 In a subsequent affidavit,[106] JLW describes Beth's progress over the subsequent months. Among other things, she notes that Beth has expressed worry that people will leave her and will not be around. Beth has not attempted to abscond recently. Beth has been going on frequent outings. She continues to have contact with animals. She has swimming lessons. It is proposed that she is to have a teacher three days a week commencing next term.

154 She has a treating psychiatrist and general practitioner.

155 Despite the overall picture of positive progress it remains necessary from time to time to use the calm down room to seclude Beth.

1. Beth continues to have bad days when her behaviour escalates and we need to escort her to the calm down room. For example, last week, new staff were rostered to work with Beth. Beth was abusive to staff and when the new staff began their shift, they were uncertain how to deal with Beth's behaviour.
2. When Beth meets new staff, she tests the boundaries of the staff to see what they will do when her behaviour escalates. This is a learned behaviour for Beth and gives her a feeling of safety.
3. Beth is starting to learn and implement strategies to calm herself, rather than escalating her behaviour and being escorted to the calm down room by staff. For example, Beth takes herself to the calm down room. She has also occasionally taken herself to her bedroom to calm down. She will breathe deeply when trying to calm down, especially when she is in the car.[107]

156 In oral evidence JLW said the major challenge in caring for Beth is the unpredictability of Beth's behaviour and her anxiety coupled with an underlying context of intellectual disability. She described the changes in Beth's behaviour since beginning her placement in the house. She said that at the outset Beth was easily escalated and would often become verbally and physically aggressive and damage property; whereas JLW had now observed Beth making attempts to calm herself either independently or with the support of staff. She noted that the calm down room is now used 'a lot less frequently than it was in the initial days'.

157 In cross-examination, JLW described two relatively serious incidents of violent assault of staff by Beth in the transitional phase after moving to the nominated agency. The second of these involved biting of a secure welfare worker and is the subject of an assault charge still pending before the Children's Court. JLW confirmed that in her view a therapeutic approach was appropriate for Beth's management. She has seen a positive change in Beth as a consequence of living in the therapeutic environment at the nominated agency.

158 Ms Miller sees Beth regularly. Based on her observations, Beth has settled in the house and is now more able to moderate her responses and behaviours in a manner which did not occur over the previous year. She expresses the following opinion:

1. Beth will need the support, security and consistency provided by the current arrangements in the ... house for the foreseeable future. Beth's history demonstrates that, when she does not feel secure, she engages in behaviours that are unsafe to herself, as well as others, including the staff who work with her. Beth needs to learn how to regulate her behaviour and emotions in familiar and unfamiliar scenarios. Challenges for Beth over the next 12 months will include learning how to control her anxiety in unfamiliar places, including in the community; and re-entering education. For these changes to be successful, Beth needs to be able to rely on the security and consistency that the ... house is providing her.[108]

159 In her oral evidence, Ms Miller said that 'even in this short period, relatively short period since Beth's been in the house with this new team, her ability to go out into the world and to behave appropriately has improved I would say dramatically'. She gave an example of the change in Beth's behaviour:

One time I went to the unit she talked about - she was demanding chocolate and a slurpee and starting to escalate and calling everybody an effing so and so and starting to become threatening and then somebody talked about breathing and I started breathing with her and she said, 'Okay. I'm using my problem solving skills.' Well, you know, three months earlier, six weeks earlier, she would not have even known those words and she would not have - let alone have internalised what they mean and let alone be able to do it in the moment, i.e. she took the deep breath, and she did calm down and she didn't hit anybody and I was able to talk about dancing with her and the next thing you know, we were having a lovely time.

160 Ms Miller emphasised the importance of providing stability for Beth, noting 'Beth's ability to manage change and how that completely throws her off balance ... I think we need to hold onto the positive trajectory that we are on now'.

161 MHO has visited Beth in the house and expresses the view that Beth's improvement has been sensational, although still a long way to go. Beth has told him that she would prefer to stay in her current accommodation because she cannot get out and nobody can hurt her. He would like to see Beth stay in the house for the time being. Beth feels safe and secure in the house and is getting the support she needs to work through her traumas.

162 Ms Saffron sees Beth regularly on Fridays and undertakes weekly meetings with Beth's care team in order to support them. She confirms that Beth's progress has been dramatic.

1. I am surprised at how far Beth has come in such a short term. Beth's progress has exceeded everybody's best expectations. When I first met Beth, she was particularly fearful, reactive, confronting and violent. The Beth I meet now is a joy. She smiles and laughs and engages quite nicely with staff and myself. Overall, she is progressing better than I had expected in such a short term but there is still a long way to go before we can be confident that Beth has the ability to generalise what she is learning in a contained environment and apply it in a broader less contained setting.
2. It is far too early to expect that Beth is now able to live in the community without the supports that have been built around her in the ... house. Beth's current behaviour is evidence that what we have planned is working. To change Beth's placement now would be detrimental to her. The containment that Beth's environment offers her is providing Beth with the safety that she needs.
3. Beth feels safe with her carers and feels safe in the environment of the ... house. Her environment contains her, which is beneficial for Beth because she is looking for that sense of safety in her physical environment. Beth wants containment and I believe that, if the ... house became an unlocked facility, Beth would first ask for the locks to be turned back on and, if this did not occur, Beth would then escalate her behaviour. I do not contemplate any changes to the lock up facilities in the next 12 months.
4. I have no doubt that, if the placement were to change now, Beth would regress. The changes would compound her trauma and I believe that she would hurt herself and others in response. Beth is just starting to build trusting relationships, it would be a betrayal. If that were to be taken away, Beth would feel unsafe again and that she could not trust the world.
5. I believe that the current placement is in the long term interests of Beth. She is making progress and I anticipate that that progress will continue. In my opinion, there is no reasonable alternative to the current placement.[109]

163 In oral evidence, Ms Saffron confirmed that Beth is developing the trusting relationships which were hoped for when she was accommodated in her current placement but that she is still subject to unpredictable and self-harmful behaviour. Beth has a very deeply felt fear of losing what she has in her current accommodation. That fear is a function of core aspects of her personality.

164 Beth has also been visited by Janine Marie Dillon, Advocate Guardian of the Office of the Public Advocate. She has visited Beth on two occasions and expresses the following opinion:

1. I have met Beth on two occasions only, however I have remained abreast of what is reported to occur in the house through the documents circulated by DHS and through a couple of conversations with [DM] and [JW]. My understanding is that the models of accommodation usually available through the Out-of-Home care system did not meet Beth's needs.
2. My understanding is that a sense of being safe is a critical foundation for Beth's self-development in all areas. Based on my discussions with Beth and the information passed on to me, I believe that Beth is feeling safer in the current house with the current model than she has in her previous accommodation. At this time Beth seems to perceive the use of restraint and the calm down room as beneficial to her. She mentioned to me more than once that she feels safe with the staff.
3. I view the weekly house staff team meetings and supervision with Linda Saffron as a critical means of imparting knowledge among staff about the new learning regarding both Beth herself and the strategies employed to support her, as well as monitoring areas in which individual staff need further skill development. I view the continued monitoring of the use of all forms of restrictive interventions as a necessary component of this model of accommodation. As the lone resident of a house with five staff entering each day, involved in very little activity external to this environment and historically experiencing a large amount of abuse, my view is that it would be to Beth's benefit to continue to have the independent monitoring of the Community Visitors program available to her.[110]

165 Beth has also been visited by Emma Katherine Moore, who is employed by the Office of the Public Advocate and whose duties include co-ordinating and supporting community visitors. On 25 January 2013 she visited Beth together with a community visitor with 24 years' experience. Ms Moore formed the following conclusions:

1. Based on our conversation with Beth and my observations, I formed the following impressions and opinions:
   • Beth's intellectual disability, if any, appears to be very mild.
   • She does not like personal questions.
   • She likes touch and is affectionate.
   • She appears to have a number of behavioural issues, including an inability to accept rejection, lack of behavioural control, and overly sexualised behaviours.
   • She is a very pleasant person when calm.
   • She appears to be intelligent, although her logic system may have been impacted by her history.
   • She appears to be very compassionate.
   • She appears to [be] more of a danger to herself than others, however she would be unmanageable without 2:1 support due to angry outbursts and sexualised behaviour.
   • She needs to gain appropriate socialisation skills to be able to interact effectively with other members of the community.
2. I was impressed with the engagement of the staff, who clearly wish to see Beth succeed and have a better chance for the future. I was also very impressed with the commitment and knowledge of the staff, and their flexibility in attempting to see what works for Beth.

166 Dr Richard Kefford, who has treated Beth as a consultant child psychiatrist, states in an affidavit sworn on 6 March 2013:

To the extent that I can express a view about the necessity of Beth's containment, I can only rely on the reports made to me by DHS staff who have cared for Beth regarding Beth's repeated attempts to abscond from care, placing Beth at risk of harm. If these reports are correct, it seems to me to be a matter of common sense that Beth should be placed in a secure facility. However, this is not a matter upon which I am in any better position than the Court to express a view.[111]

167 I viewed the secure house at 2:00 pm on Tuesday 12 March 2013 in company with Robyn Miller and my associate. In accordance with the views strongly expressed to me in evidence by Ms Saffron and in response to concerns expressed by Ms Miller, I did not identify myself as a judge.

168 JLW and two other carers were present when we spoke with Beth.

169 Beth is a strongly built, highly energetic young lady. She engages directly with the staff caring for her and her visitors.

170 She expressed the very strong desire not to be moved from her current home and to remain with her current staff.

171 She has some intellectual disability of an apparently moderate degree. Nevertheless she does display an active and independent mind. She is subject to fluctuating levels of anxiety and is concerned to engage with her situation and the people in it. At one point she became agitated but then quickly calmed herself.

172 Beth speaks of theft and hurt she has suffered in the past and is plainly conscious of a number of experiences which have caused her pain. A number of her observations give quite mature rationales for her attitudes and actions.

173 Beth communicated directly and effectively with my associate and myself as visitors, but she is clearly ambivalent towards males (this was evident both in description of other relationships, including that with her psychiatrist and in part in her initial response to me).

174 She has a strong sense of particular relationships with different people in a group. She has a good recall (at least in the relatively short term) for past incidents within those relationships. She is consciously trying to improve her behaviour and gives the strong impression of wanting to do this to reciprocate the care and happiness she has received in her current situation.

175 This said, it is apparent that she has the capacity to become highly emotional and act irrationally. On the day of my visit she had slapped one of her carers at the end of a horse riding session which occurred that morning. She was still seeking to apologise for this incident when we met her with this carer.

176 The house is a spacious solid brick dwelling adjacent to the nominated agency. It is fenced off with security fencing and the lower portions of the front windows are boarded up.

177 The rooms are generous with a series of living zones comprising the lounge/TV room; the dining room adjacent to the kitchen; an interior courtyard in which Beth is growing plants; a rear living/computer room; a bedroom/bathroom and calm down room; and an external lawn area.

179 It is apparent Beth has a very close relationship with some of her carers, including in particular JLW.

(a) that attempted placements in residential care and SWS have failed to provide for Beth's care and protection;

(b) the probability is that if the orders are not made, Beth will spend the greater part of her time in involuntary confinement either in SWS or the Youth Justice Custodial Services at Parkville;

(c) that in less supportive environments than the house, Beth has repeatedly engaged in violent and self-destructive behaviour;

(d) that in less secure environments than the house, Beth has repeatedly absconded and upon absconding engaged in seriously self-destructive behaviour including in particular sexual behaviour and exposure to risks from road traffic;

(e) the operation of the house is undertaken in accordance with comprehensive overall plans by expert staff and with a high degree of responsiveness to Beth;

(f) the seclusion involved in the placement is offset by frequent outings which have been and will be progressively increased;

(g) the use of the calm down room is minimised to that which is strictly necessary;

(h) there is no other satisfactory secure facility available for Beth;

(i) the maintenance of stability in her current placement is a very significant factor in maximising the future prospects of Beth's personal development;

(j) there has been a progressive reduction in self-harmful and destructive behaviour on Beth's part since she was placed in her current accommodation;

(k) Beth's personal development has progressed in other respects since she was placed in her current accommodation;

(l) Beth's own clear preference is to remain in her current accommodation;

(m) Beth has a positive and close relationship with the principal members of staff charged with her care; and

(n) the Secretary has committed very substantial resources and individual staff attention to Beth's care.

181 The order sought reflects the following underlying premises:

(a) Beth will be cared for at the purpose built accommodation operated by the nominated agency.[112]

(b) Beth will be subject to detention within the lock-up facility only insofar as such measures are reasonably necessary and staff will be required to seek to use the least restrictive means necessary.[113]

(c) Beth will be subject to restrictive interventions subject to the requirement that restrictive force may only be used as far as is necessary and provided always that staff seek to use the least restrictive means necessary.[114]

(d) Care will be provided to Beth in accordance with structured programs and plans.[115]

(e) The arrangements will be subject to ongoing supervision within DHS (including the Senior Practitioner) and independent vetting by:

• the Principal Commissioner,[116] Commission for Children and Young People; and

(f) A comprehensive report will be prepared after six months by the Senior Practitioner as to the operation of the order.

(g) The orders will be for a fixed term only and subject to review on fresh evidence.[118]

(h) Liberty to apply should be reserved to each of the parties who appeared before the Court in order to address any problem that may arise or become apparent in the course of the operation of the proposed order.[119]

182 The Commission, the Public Advocate and Legal Aid submit that the order should also provide for independent representation for Beth in respect of the proposed order and in particular in future proceedings relating to the order. This is opposed by the Secretary on the basis that Beth is not capable of giving independent instructions to a legal representative and that the attendance of a solicitor upon her prior to the hearing before me proved distressful to her and disruptive to her care. Further, it is submitted that the day to day administrative operation of the order pending review should not be unduly encumbered.

183 I accept that a flexible approach may be appropriate to ascertaining the views of a child and to representing his or her best interests.[120] Nevertheless, in my opinion, if the substantive orders sought by the Secretary are made, an order should be made for independent legal representation of Beth upon the review of the current order. Such review will 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. The representation proposed should be provided on a 'best interests' basis.

184 The voice of the child is a significant factor recognised by the CYF Act as bearing upon the ascertainment of the best interests of the child.[121] In the present case Beth's own statements to the Court materially supported the Secretary's application.

185 Independent representation is in turn a significant safeguard against the inappropriate exercise of the disproportionate power which the Secretary will hold in respect of Beth under the proposed order.

186 If particular concerns arise with respect to the practical impact upon Beth of legal representation upon the review, then they can be raised on application to the Court prior to the hearing of such review.

187 A series of decisions in the Supreme Court of New South Wales have adopted the practice in its parens patriae jurisdiction that the children the subject of the proceedings be represented by analogy to the way that they would have been represented in child protection proceedings before the Children's Court.[122] They include the following authorities.

188 In Re Thomas,[123] 16 year old Thomas, who was diagnosed with various combinations of mild to moderate developmental delay 'giving him an intellectual age of about 6 years', along with other disorders, trauma and depression, was separately represented.

189 In Re Helen,[124] the New South Wales Supreme Court made similar orders to those in Re Thomas in respect of an application to place a 14 year old girl in a secure facility, noting that 'those orders also provide for Helen to be separately represented' and requesting the Legal Aid Commission to arrange for such representation.

190 In Re Vernon,[125] the Director-General and the Minister sought orders to authorise the placement, restraint and medication of a 13 year old boy who suffered from a form of autism and developmental delay. An independent legal representative was appointed at the request of the Director-General and the Minister.[126]

191 In Re Alexis,[127] the Director-General for the Department of Family and Community Services and the Minister for Family and Community Services applied to the Supreme Court of New South Wales for orders authorising the detention of a 14 year old girl in a lockable facility for the purposes of her care, treatment, education and the protection of both herself and others from harm. The decision noted that 'as is customary in such matters' Alexis was separately represented by a legal representative through the Legal Aid Commission of New South Wales.[128]

192 In Re Jessica,[129] the New South Wales Supreme Court made orders authorising a 15 year old girl subject to uncontrollable violent behaviour to be transported to and detained in a hospital. The orders proposed by the Minister for Community Services and Director-General of the Department of Community Services were consented to by the child's mother (as a party) and a separate representative of the young person. Although the representative had not sought instructions from the young person and 'the taking into account of the young person's wishes [was] precluded as a practicable course by the extremes of the young person's behaviour demonstrated by the evidence', the Court was assured that the representative had had the highest degree of co-operation from the plaintiffs and the staff of the institutions in which the young person had been, in keeping herself abreast of the young person's progress. The representative had been able to participate in consultations concerning the ongoing situation.[130] The Court relied heavily on this assurance and on the continued assistance of the representative.

193 I accept that the New South Wales practice should be followed and that the nature of separate legal representation for the child afforded in the parens patriae jurisdiction should generally align with the appropriate model that applies in child protection proceedings in the Children's Court of Victoria under the CYF Act having regard to the rights and best interests of the child. Such representation has been considered by this Court in recent decisions.[131]

194 The CYF Act provides two models of legal representation, namely a direct instructions model and a best interests model. Section 524(10) provides that where a young person is mature enough to instruct, he or she is to be represented on a direct instructions model of representation. Section 524(11) provides that where a child does not have the capacity to instruct he or she should be represented on a best interests representation model. In A & B,[132] Garde J observed:

The nature of direct legal representation and of best interests legal representation is very different. In the first, the child gives the instructions and the legal practitioner must act in accordance with them so far as it is practicable to do so. In the second, the legal practitioner acts in what he or she considers to be the best interests of the child. The obligation of the legal representative to the child is fundamentally different in the two cases. Nonetheless 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.

Subsection 524(11) describes what best interests representation involves. It adds to the rights of a child, because in the absence of such a provision, a legal practitioner cannot act for a child on a best interests basis. However, it lacks two of the hallmarks of the lawyer - client relationship: the duty to obtain and adhere to instructions, and the confidentiality of privileged communications. The role is essentially one of representing the child in accordance with what the legal representative believes are the best interests of the child.[133]

195 On the other hand I do not accept that it is necessary to request Legal Aid to provide ongoing legal representation on a continuing basis prior to any formal review of the appropriateness of the order. I further accept the Secretary's submission that the evidence does not establish that it could be provided without potential detriment to the therapeutic environment.

196 The Secretary is a public authority under the Charter.[134] Section 38(1) and (2) of the Charter provides:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.[135]

197 The Commission submits that in the light of the Secretary's obligations under s 38 and the serious restrictions on human rights that the proposed orders authorise, 'the Court must be satisfied the making of these orders will not result in the Secretary acting in a way that is incompatible with the relevant human rights.' The Commission further submits that under the Charter, human rights are not absolute, but any limitation on human rights will only be compatible with the Charter if it is a reasonable limit that satisfies 'the strict standard of justification in section 7(2)'[136] which provides:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.[137]

198 In my opinion, s 38(1) of the Charter does not in strictness fetter the Court's powers to make orders in the parens patriae jurisdiction. Section 38(2) means that the Secretary will be bound by the terms of the Court's order despite s 38(1) insofar as it requires the Secretary not to act differently or make different decisions.

199 Nevertheless, it can hardly be doubted that consideration of Beth's human rights illuminates the concept of her best interests. Moreover, the Secretary accepted that although the Court is not bound by s 38, the Court should satisfy itself that the proposed orders will result in the Secretary acting compatibly with Beth's human rights.

200 Further, both the caution of the common law and the analogy of the schemes of the CYF Act and Disability Act support the view that the principles stated in s 7(2) of the Charter concerning reasonable limits should be seen as implicitly conditioning and informing the Court's discretion with respect to the parens patriae jurisdiction independently of s 7(2). In particular the Court's orders should not go beyond authorising the least restrictive means reasonably available to achieve the purpose which the limitation seeks to achieve.

201 It follows from my ultimate conclusions that the limitations on human rights authorised by the proposed order are reasonable and satisfy the requirements of s 7(2). The limitations which the orders involve upon Beth's right to liberty,[138] privacy,[139] freedom of movement,[140] and potentially freedom from medical treatment without consent,[141] are reasonable, necessary and proportionate in the circumstances of her case. In written submission, the Commission conceded that the Secretary could implement the proposed arrangements compatibly with the Charter 'if the arrangements 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. This could be achieved through the provision of appropriate safeguards and oversight of the care, detention and treatment arrangements.'[142]

202 In my opinion, these concessions were properly made. An underlying contextual reality is that, as the Secretary submitted, the probability is that if the orders are not made Beth will suffer substantial involuntary confinement either within SWS or the youth justice system as she has in the past.

203 I would grant the orders sought substantially on the conditions proposed. I am satisfied on the whole of the evidence that they are in the best interests of Beth. In so concluding I have regard in particular to the following matters:

(a) that they respond directly to a factor recognised by the CYF Act as potentially bearing upon the best interests of a child, namely the desirability of continuity and stability in a child's care;[143]

(b) that they are necessary to supplement the statutory regimes otherwise potentially available to provide for Beth's care;

(c) that Beth has made significant progress since moving to the nominated agency pursuant to the interlocutory order of Cavanough J and that progress is likely to continue if the orders sought are made;

(d) that if the orders proposed are not made, Beth will be deprived of stable care and will in all probability suffer both significant harm and hindrance to her personal development;

(e) that if such orders are not made Beth has no other reasonable prospects of obtaining satisfactory care and protection and in particular appropriate secure and stable accommodation and care;

(f) that the proposed conditions adequately restrict the use of seclusion and restrictive interventions to what is reasonably necessary and will be applied in accordance with the principle that Beth's carers will seek to use the least restrictive measures necessary;

(g) that the proposed orders can and should be appropriately limited in duration and subject to review;

(h) that the proposed care will be appropriately planned, supervised and monitored; and

(i) that the Secretary has committed substantial ongoing resources to the care of Beth which have enabled and will continue to enable the arrangements in issue to operate satisfactorily.

204 The overall benefit to Beth will be a net benefit in the sense that it will come at the price of material interference with her human rights, including in particular her rights to liberty. Nevertheless, I am satisfied that this interference will be reasonable, necessary and proportional in the circumstances of Beth's case. In turn, the net contribution of the proposed orders to Beth's best interests will on balance be very substantial.

205 In Re Thomas[144] Brereton J concluded that:

deprivation of a child's liberty for protective purposes, as distinct from following conviction of an offence, may be justified and even necessitated by the protection and promotion of the child's welfare and in those circumstances will not contravene the child's human rights. Since protection and promotion of the child's welfare lies at the heart of the parens patriae jurisdiction, I would hold that jurisdiction extends to authorise the orders sought.[145]

206 I am fortified in the above conclusions by the fact that all of the parties agree the primary orders sought by the Secretary are capable of being regarded as being in Beth's best interests and that all of the parties agree appropriate conditions can be formulated for the purposes of a Court order although there is disagreement as to some aspects of those conditions.

207 Subject to any further submissions of the parties as to form, I propose to make the following orders: [146]

1. The Victorian Equal Opportunity and Human Rights Commission intervened in these proceedings pursuant to s 40 of the Charter of Human Rights and Responsibilities Act 2006.
2. The Court notes that it is common ground that:
   1. Subject to this order, pt 7 of the Disability Act 2006 ('the Disability Act') applies to [the nominated agency] as a 'disability service provider' as defined in s 3 of the Disability Act, and applies to Beth because she satisfies the criteria in s 133 of the Disability Act.
   2. The supervision of community visitors under div 6 of pt 3 of the Disability Act applies to [the nominated agency] in its care of Beth.
   3. The Child Safety Commissioner is empowered to monitor the conditions under which Beth is residing and being cared for, pursuant to pt 4 of the Commission for Children and Young People Act 2012.
   4. The Public Advocate is empowered to inspect the premises at which Beth is being cared for, see Beth and make inquiries relating to her care, detention and treatment or control pursuant to s 18A of the Guardianship and Administration Act 1986.

1. Until the making of orders pursuant to the review referred to in paragraph 5 or further order, and notwithstanding the provisions of pt 7 and pt 8 of the Disability Act and the provisions of s 173(2)(b) of the Children, Youth and Families Act 2005, the Secretary and those acting under her direction are authorised to place Beth in the residential facility described in the affidavit of Robyn Miller dated 22 November 2012 (being premises operated and staffed by [the nominated agency]) and to use, and direct staff at [the nominated agency] to use, whatever means may be reasonably necessary for that purpose, including lock up facilities, provided always that the staff at [the nominated agency] seek to use the least restrictive means necessary.
2. Until further order, the Secretary and those acting under her direction and the staff at [the nominated agency] are authorised to use restrictive interventions (as that expression is defined in s 3 of the Disability Act) on Beth and, as far as is necessary, to use reasonable force in doing so, provided always that they seek to use the least restrictive means necessary.
3. No later than 6 months after the date of this order, the Secretary shall file and serve on the intervenor and amici curiae a report from the Senior Practitioner, Specialist Services, Disability Services, Department of Human Services, or a person in a similar position, as to whether the orders in paragraphs 1 and 2 hereof continue to be required, together with any modifications which should be made to the orders to reduce the level of restrictions imposed on Beth. Such report is to:

1. why the orders (with any modifications) continue to be required in Beth's best interests, if that is the opinion she forms;
2. the progress that Beth has made as against the statutory plans referred to in paragraph 3(b); and
   1. a summary of Beth's views on the placement;

1. the Behaviour Support Plan, which will comprise the Care and Case Plan which is currently Exhibit LS-1 to the affidavit of Linda Saffron affirmed on 26 November 2012 and the Care and Support Plan which is currently Exhibit 1 tendered at the hearing before Justice Cavanough on 27 November 2012; and
2. the Statutory Case Plan under s 167 of the Children, Youth and Families Act 2005 including Stability Plan under s 170 of the Children, Youth and Families Act 2005, which is currently Exhibit B tendered at the hearing before Osborn J on 7 March 2013;
3. attach a report by the Senior Practitioner on the use of restrictive interventions since the hearing; and

1. attach reports from Beth's treating general practitioner and psychiatrist identifying what medications have been prescribed for Beth and why those medications have been prescribed.

4. The proceeding be listed for further mention before Associate Justice Daly or such other Associate Judge as the Associate Judge in Charge of Listing may nominate within 14 days after the filing and service of the report referred to in order 3.

1. The orders in paragraphs 1 and 2 hereof are to be the subject of a review by the Court on fresh evidence on or before 16 February 2014.
2. The Secretary, any intervenors and the amici curiae have liberty to apply on two days' notice, such notice to specify any orders sought.
3. Subject to further order of the Court upon the hearing of the review required by order 5, Beth be separately represented and it is requested that Victoria Legal Aid provide for such representation. The role of the separate representative is to be akin to the role of a best interests lawyer as set out in s 524(11) of the Children, Youth and Families Act 2005.

208 These orders reflect the orders proposed by the Secretary save for the following matters:

(a) I have inserted the words 'Subject to this order' in the recital of matters that are common ground under 'OTHER MATTERS'.

(b) I have expanded the proposed terms of order 1 to make clear that the terms of the order are intended to be given effect notwithstanding the provisions of pt 7 and pt 8 of the Disability Act and the provisions of s 173(2)(b) of the CYF Act. The Secretary's powers arise as the person authorised and designated by that order made in the parens patriae jurisdiction of this Court. Subject to the operation of the order however pt 7 of the Disability Act is intended to apply to Beth.

(c) I have rejected the submission made by Legal Aid that the time specified for report under order 3 should be less than six months. I prefer the position accepted by the other parties that this is not practicable. I have however directed that the matter be listed for further mention following the filing of the report required by order 3 to ensure that its consequences are squarely addressed by the parties and if necessary brought to the Court's attention. The possibility of such a direction was raised during the course of argument before me and was not opposed by the Secretary.

(d) I have fixed the time for review by reference to Beth's 17th birthday. This will allow for the substantial operation of the current arrangements for a period which by then will have exceeded 12 months but falling short of the period of 12 months from the date of my orders which is sought by the Secretary. The Court must strike a balance between the desirability of providing stability for Beth and the necessity to provide for timely review. The review I propose will also enable further arrangements to be put in place for a sensible period prior to Beth's 18th birthday.

(e) The order requires separate representation for Beth for the reasons I have already outlined.

209 The terms of order 3 were otherwise resolved by agreement between the parties during the course of the hearing before me.

210 I will give the parties a further opportunity to address the precise form of the order I am disposed to make.

[4] The applicant accepted that this paragraph might require revision.

[5] As the position was previously known.

[6] The Public Advocate and Legal Aid Victoria appear as amici curiae.

[8] Pursuant to CYF Act ss 274 and 275.

[13] Custody is defined by s 5 of the CYF Act:

A person (including the Secretary) who has, or under this Act is granted, custody of a child has -

(a) the right to have the daily care and control of the child; and

(b) the right and responsibility to make decisions concerning the daily care and control of the child.

[14] Guardianship is defined by s 4 of the CYF Act, quoted above.

[16] The CYF Act provides for a regime for the registration of community services (CYF Act pt 3.3 div 3) and the application of performance standards and responsibilities of those services (CYF Act pt 3.3 div 4), and a detailed scheme for the registration and supervision of out of home carers (CYF Act pt 3.4).

[17] Assistant Director, Placement and Support Services, Department of Human Services since March 2009.

[18] Affidavit of Argiri Alisandratos sworn 22 November 2012.

[20] Victoria, Parliamentary Debates, Legislative Assembly, 6 September 1990, 514 (Kay Patricia Setches).

[24] Section 169(3) of the CYF Act lists matters which it may include.

[26] Section 3 of the Disability Act defines 'intellectual disability' as follows:

intellectual disability, in relation to a person over the age of 5 years, means the concurrent existence of -

(a) significant sub-average general intellectual functioning; and

each of which became manifest before the age of 18 years;

[27] Disability Act s 1.

[28] Disability Act s 4.

[31] Section 3 of the Disability Act defines 'disability service provider' as follows:

(b) a person or body registered on the register of disability service providers;

[32] Disability Act s 27(2)(a).

[33] Disability Act pt 3 div 6.

[34] Disability Act s 28(1).

[35] Disability Act ss 29(2) and 32.

[36] Disability Act s 30(f).

[37] Disability Act s 3.

[38] Disability Act s 3.

[39] Disability Act s 3.

[40] Disability Act s 152 (emphasis added).

[41] See Disability Act s 152(2) quoted above.

[42] Section 3 defines supervised treatment order to mean:

supervised treatment order means a civil order made in respect of a person with an intellectual disability under section 191;

[43] Disability Act s 191 (emphasis added).

[44] Disability Act s 3.

[45] Disability Act s 191(2).

[46] Disability Act s 194.

[47] [1991] HCA 21; (1991) 172 CLR 1, 17 (applied in Shergold and Tanner [2002] HCA 19; (2002) 209 CLR 126, 136-7 [34]).

[48] [1961] HCA 32; (1961) 106 CLR 268, 276.

[50] Pearce & Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 6th ed, 2006) 254; Shergold and Tanner [2002] HCA 19; (2002) 209 CLR 126, 136; Re Applications of Shephard [1983] 1 NSWLR 96.

[51] [1994] HCA 15; (1994) 179 CLR 427.

[53] Disability Act s 4(a).

[54] See Victoria Police Toll Enforcement & Anor v Taha & Anor [2013] VSCA 37, [198]-[199]; WBM v Chief Commissioner of Police [2012] VSCA 159, [114].

[55] See s 133(1).

[56] Disability Act s 133.

[57] Disability Act s 133.

[58] Disability Act s 141.

[59] Disability Act s 135.

[60] Disability Act s 140(a).

[61] Disability Act s 142.

[62] Disability Act s 143.

[63] Disability Act s 144.

[64] Disability Act s 145.

[65] Disability Act s 146.

[66] Disability Act s 149.

[68] Secretary, Department of Health and Community Services and JWB & Anor ('Marion's case') [1992] HCA 15; (1992) 175 CLR 218, 279-80.

[71] Marion's case [1992] HCA 15; (1992) 175 CLR 218, 258-9 (citations omitted).

[74] [2012] SASC 175.

[75] [2009] NSWSC 217.

[76] Marion's case [1992] HCA 15; (1992) 175 CLR 218.

[77] Ibid 249-254 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[78] [2009] NSWSC 217.

[79] Ibid 231-2 [34]. See also Re K [2001] 2 All ER 719, to which his Honour referred at 233-4 [38].

[80] [1992] 3 WLR 758; [1992] 4 All ER 627.

[81] [1997] 2 FLR 180.

[84] Johnson v Director General of Social Welfare (Victoria) [1976] HCA 19; (1976) 135 CLR 92.

[85] Marion's case [1992] HCA 15; (1992) 175 CLR 218; Re Thomas [2009] NSWSC 217.

[86] [1974] HCA 33; (1974) 133 CLR 345, 366.

[87] Johnson v Director General of Social Welfare (Victoria) [1976] HCA 19; (1976) 135 CLR 92.

[89] Re Thomas [2009] NSWSC 217, 229 [28].

[91] Robyn Maree Miller, as the Principal Practitioner with the Department of Human Services, reports to the Executive Director for the Children Youth and Families Division. She has over six years' experience in this position, and has thirty years' experience as a social worker and clinical family therapist working with traumatised families. She holds a Bachelor of Social Science from RMIT, a Graduate Diploma in Family Therapy from La Trobe University and a Masters in Family Therapy from La Trobe University, and is a PhD candidate at La Trobe University. She has published and taught in related areas.

[92] Affidavit of Robyn Maree Miller sworn 22 November 2012.

[95] Sworn 22 November 2012. MHO holds a Diploma of Disability, a Diploma in Business Management and an Advanced Diploma in Welfare. He is the Director of Out-of-Home Care Operations of the nominated agency. As Director, he is responsible for managing out of home care services for the nominated agency's North West and Barwon South West regions, where there are 400 children in the agency's care. He has 25 years' experience in welfare and community services, which includes six years as the Executive Manager of Youth Homelessness and Counselling Services at Wesley Mission, five to six years as the Executive Officer for Homelessness Services for St Vincent de Paul, and previous experience at the Department of Human Services.

[96] Affidavit of MHO sworn 22 November 2012.

[99] Linda Saffron holds a Bachelor of Arts (Honours - Psychology) and is a registered psychologist. She commenced a position with the Department of Human Services in 2001 before ultimately being promoted to her current role in 2007. In this role, she develops support plans for children who exhibit behaviours of concern by working with the children, their families, support workers and schools.

[100] This is not the same position as Senior Practitioner under the Disability Act.

[101] Prepared pursuant to s 167 of the CYF Act.

[102] Prepared pursuant to s 170 of the CYF Act.

[103] JLW holds a Certificate in Social Services and a Diploma in Human Resources Management from the Christchurch Polytechnic Institute of Technology in New Zealand, and is partway through studies towards a Bachelor of Social Work. She has ten years' experience as a social worker, working both with perpetrators of violence who were the subject of protection orders and in coordinating support services for victims of domestic violence. As Residential Supervisor, she is responsible for recruitment, rostering and supervision of staff at the house provided for Beth, and oversight and review of the care plan and behaviour support plan for Beth, which involves working at the house.

[104] Affidavit of JLW sworn 7 February 2013.

[107] Further affidavit of JLW sworn 4 March 2013.

[108] Second further affidavit of Robyn Maree Miller sworn 6 February 2013.

[109] Further affidavit of Linda Saffron sworn 2 March 2013.

[110] Affidavit of Janine Marie Dillon sworn 12 February 2013.

[111] Affidavit of Richard Stanley Kefford sworn 6 March 2013, [9].

[116] Formerly 'the Child Safety Commissioner'.

[117] Recitals and order 3. The Child Safety Commissioner (as the position was then known) confirmed by letter to the Court of 5 February 2013 his willingness to be involved in external oversight of Beth's accommodation.

[120] Secretary, Department of Human Services v Sanding [2011] VSC 42, [209]-[211].

[121] CYF Act s 10(3)(e). See also s 11(8). See also Secretary, Department of Human Services v Sanding [2011] VSC 42, [29] and, more generally, [30].

[122] See Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644.

[123] [2009] NSWSC 217.

[124] [2010] NSWSC 1560.

[125] [2011] NSWSC 1222.

[127] [2011] NSWSC 1545.

[129] [2001] NSWSC 1207.

[131] Secretary to the Department of Human Services v Sanding [2011] VSC 42; A & B v Children's Court of Victoria [2012] VSC 589.

[132] A & B v Children's Court of Victoria [2012] VSC 589.

For the purposes of this Charter a public authority is -

(a) a public official within the meaning of the Public Administration Act 2004.

[135] Charter s 38(1) and (2).

[136] PJB v Melbourne Health (Patrick's case) [2011] VSC 327, [330].

[137] Charter s 7(2).

[139] Charter s 13(a).

[140] Charter s 12.

[141] Charter s 10(c).

[142] Additional submissions of the Commission 1 March 2013, [4], [7] and [8].

[143] Section 10(3)(4).

[144] [2009] NSWSC 217.

[146] The passages italicised differ from or add to the terms of the orders sought by the Secretary.