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J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 (4 March 1987)

CATCHWORDS

Legal Practitioners - Solicitor and client - Retainer - Duty solicitor system - Assignment to represent infants - Non-criminal proceedings - Absence of instructions from parents or guardians - Absence of court order appointing person to give instructions.

HEARING

DECISION

WILSON J.: I have had the advantage of reading the reasons for judgment prepared by Brennan J. The facts of the case and the material legislative provisions are set out in those reasons and it is unnecessary for me to repeat them. I agree with his Honour that the appellant's rights as a custodial parent and guardian of the children were under challenge in the proceedings with the consequence that, unless the Child Welfare Act 1939 (N.S.W.), as amended ("the Act") revealed a contrary intention, she was entitled by reason of the principles of natural justice to a general right to be heard. I agree also that the provisions of the Act upon which reliance was placed to establish a contrary intention lack the clarity and cogency necessary to achieve that result. I do not wish to repeat the course of reasoning which leads to these conclusions. However, there are two aspects of the matter which invite further comment.

2. The section of the Act which might be thought to come nearest to expressing a legislative intention to exclude the operation of the common law principle of natural justice affording to a parent a general right to be heard is s.89(1). That subsection provides in positive terms that the Court, if satisfied that a prima facie case has been made out that a child or young person is a neglected or uncontrollable child, shall give:

"the child or young person or his parent an
opportunity to call evidence, and shall hear any
evidence that may be tendered by or on behalf of
the child or young person".
interests of the parent with the interests of the child or young person. The second is that, consistently with the first, it secures the opportunity only to tender evidence "by or on behalf of" the child or young person. It is arguable that this expression of legislative intention necessarily excludes any right to a child or a parent on his behalf to participate in the hearing prior to the finding of a prima facie case, although powerful reasons may be adduced in favour of a contrary conclusion. But even if the right of the child be abridged, it does not follow that the legislature intended to affect the common law right of the parent to be heard in his or her own behalf. The subsection does not address that situation. As Brennan J. has explained, in the circumstances of the present case, the appellant's right to be heard is a general right to be accorded the opportunity to cross-examine witnesses called for the complainant and to adduce evidence. It is a right which is available from the commencement of the proceedings.

3. A second matter upon which I wish to comment is the peripheral question of the legal representation of the child. I do so because I would not wish the Court's decision in this case to be taken as implying any criticism of the legal aid scheme provided to Children's Courts by the Legal Services Commission of New South Wales. There is every reason to suppose that the scheme makes a valuable contribution to the administration of justice in these Courts. I do not see any objection in legal principle to the scheme because of its informal character. Neglect proceedings are truly a creature of statute, neither civil nor criminal in nature. They are therefore sui generis. They do not attract the common law disability, now frequently embodied in rules of court, whereby infants may not institute or defend civil proceedings otherwise than by a next friend or guardian ad litem. The Act does not contain any provision, comparable to s.65 of the Family Law Act 1975 (Cth), as amended, empowering the Family Court to provide for the separate representation of the child. In a case where a parent has taken no steps to arrange for the child to be represented, I see no reason why a child having the capacity to do so should not avail himself or herself of the services of the duty solicitor. The child will have that capacity if he or she is of sufficient intelligence and understanding to appreciate the circumstances and to make a rational judgment as to what his or her welfare requires. Where the child lacks the necessary capacity to instruct the duty solicitor and no arrangements for representation have been made by the parent, the scheme envisages that the solicitor will inform the Court to that effect and the Court may then authorize the appearance of the solicitor as amicus curiae to represent the interests of the child so far as they may be determined objectively from the materials before the Court. It is possible that a parent may arrange for the child to be represented and may give instructions which do not accord with the wishes of the child. In the event that there is a conflict of views between the parent and the child touching the welfare of the child, it may be preferable for the child to be represented by the duty solicitor and for any opposing view to be presented through counsel for the parent. Hopefully, such a sensible result can be achieved by sensitive and responsible negotiation between the parties. Failing agreement, the Court may have to resolve the problem. The question would then be whether the right of the parent to arrange for the representation of the child operates to exclude any independent right in the child. In former times, that question would undoubtedly have been answered in the affirmative. However, that may no longer be so in a society which recognizes the growing autonomy of the child in areas where it has sufficient maturity and understanding to make decisions touching its own welfare: see Gillick v. West Norfolk A.H.A. [1985] UKHL 7; (1986) AC 112, particularly per Lord Scarman, at p 184.

4. I would allow the appeal and make the orders proposed by Brennan J.

BRENNAN J.: The appellant is the mother of five children. The first respondent, Mr Lieschke, apprehended the children and brought them before the Children's Court at Cobham in New South Wales. There were four girls aged respectively 15, 13, 11 and 9 and one boy aged 7 at the time of their apprehension in December 1983. It was alleged that each of the children was a "neglected child" as defined in s.72 of the Child Welfare Act 1939 (N.S.W.) ("the Act"). That definition sets out a number of circumstances the existence of any of which brings a child within the definition. Paragraph (j) brings within the definition of "neglected child" a child or young person "who in the opinion of the court is under incompetent or improper guardianship". The four girls were alleged to be neglected children in that each of them was "under incompetent guardianship", and the boy was alleged to be a neglected child in that he was "under improper guardianship".

2. When a child or young person (hereafter abbreviated to "child") is apprehended by an authorized officer in the belief that he or she is a "neglected child" (s.76) or when a child is apprehended as a "neglected child" on a warrant issued by a justice (s.73(b)), the child must be dealt with as prescribed by s.78:

" Any child or young person apprehended as a
neglected or uncontrollable child or young person
or juvenile offender shall be taken to a shelter
and as soon as practicable thereafter shall be
brought before a court."

3. Section 81(1) of the Act provides:

" Where any child or young person is brought
before a court as a neglected or uncontrollable
child or young person or is charged with an
offence and is brought before a court, the court
may thereupon hear and determine the matter or
charge."

4. The powers of the court when it sits to determine the matter of a child brought before it as a neglected or uncontrollable child are prescribed by s.82 which reads as follows:

" (1) If a court finds that a child or young
person is a neglected or uncontrollable child or
young person it may -

(a) admonish and discharge the child or young
person; or

(b) release the child or young person on
probation upon such terms and conditions as may be prescribed or as the

(c) commit the child or young person to the care
of some person who is willing to undertake such care upon such terms and

(d) commit the child or young person to the care
of the Minister to be dealt with as a ward admitted to State control; or

(e) commit the child or young person to an
institution, either generally or for some specified term (whether expiring

(2) If a court finds that a child is a
neglected child it may release the child -

(a) upon such terms and conditions as the court
may think fit and as are willingly undertaken to be observed by the

(b) for such period of time (whether expiring
before or after the date upon which the child attains the age of 16 years)

" the child or young person shall be in the custody
and under the control of the person to whose care
he has been committed for the period stated in
the order of committal".

5. When the matter of the appellant's children came before the Court the parents, by counsel, sought to appear as parties in the proceedings as of right. The magistrate said that:

" To do so would be a radical departure from the
normally adopted practice ... in permitting
parents to appear by leave, particularly where a
complaint appears on the face of it, to allege
some fault on their part."

6. It seems that under some arrangement, familiar to those who practise in the Court, children who are brought before the Court as neglected children are represented by solicitors who attend the Court to provide that representation pursuant to arrangements made by legal aid agencies. No doubt the arrangement is born out of an honourable recognition of the need of disadvantaged children for legal representation but it gives rise to problems relating to the acceptance of instructions to act professionally and the function and duty of a solicitor purporting to act for a child in non-criminal proceedings: see (1977) 15 Law Society Journal of New South Wales 29. In the absence of a guardian ad litem or a tutor appointed for the purpose, the parents or other guardians of a child have authority to appoint solicitors to act for the child in non-criminal proceedings, and instructions to act cannot be assumed by a solicitor if they are not forthcoming from a person with authority to give them. By s.65 of the Family Law Act 1975 (Cth), the Parliament conferred a special power on the Family Court to order legal representation for a child. Although it is often undesirable for the appointment of a solicitor for a child to be left solely to the parents or other guardians - especially when the fitness of the parents or guardians to exercise their custodial authority is in issue - it is difficult to perceive the source of legal authority for a solicitor to represent a child in non-criminal proceedings when no order has been made by a court of competent jurisdiction appointing some other person to give the necessary instructions. In this case, a solicitor who was not instructed by the parents to act for the appellant's children purported to represent the girls in the hearing before the Court and to state what "plea" would be made on their behalf.

7. The practice of the Court when a child is brought before it as a neglected child is, at least in some cases, for a "plea" to be entered on the child's behalf. The plea may be either "cause to show" or "no cause to show" though it is said that if the plea is "no cause to show" the magistrate nonetheless hears evidence to satisfy himself that the child is in truth a neglected child. When the appellant's children were brought before the Court, the solicitor purporting to act for the four girls told the court officer that "there would be no cause to show". The court officer, it seems, represents the apprehending officer at the proceedings: see s.125. The court officer objected to intervention in the proceedings relating to the girls by counsel for the appellant. The magistrate decided that leave to appear would not be granted in respect of the girls but that, if he found a prima facie case, he would "permit the parents to then call evidence in relation to the matter and ... allow them to intervene at that particular point of time". The solicitor purporting to act for the girls told the magistrate that she had not been able to obtain instructions from the boy. In the matter concerning the boy, serious allegations were to be made against the appellant and the magistrate therefore decided "to permit the parents to appear by leave at the commencement of proceedings".

8. The appellant applied to the Supreme Court for an order in the nature of prohibition, an order in the nature of mandamus and an injunction challenging the magistrate's refusal to allow her to appear as a party in the proceedings as of right. Cantor J. refused the application and an appeal to the Court of Appeal was unanimously dismissed. This appeal is brought by special leave from that judgment.

9. The general principle which governs this case is clearly established. It is stated by Barwick C.J. in Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 in these terms (at pp 109-110):

" The common law rule that a statutory authority
having power to affect the rights of a person is
bound to hear him before exercising the power is
both fundamental and universal ... But the
legislature may displace the rule and provide for
the exercise of such a power without any
opportunity being afforded the affected person to
oppose its exercise. However, if that is the
legislative intention it must be made
unambiguously clear."

" The jurisdiction ... is surely ... very special,
and being very special the extent and application
of the rules of natural justice must be applied
and qualified accordingly. The judge must in
exercising this jurisdiction act judicially; but
the means whereby he reaches his conclusion must
not be more important than the end. The
procedure and rules ... should serve and not
thwart the purpose."

10. The magistrate in the course of argument evinced some concern that "the complaint" might not be established if the parents intervened and that "could be said to be working very much against the interests of the children". The concern was misplaced. The magistrate's refusal to accord the parents a right to be heard lest their appearance prevented the making of an order presumed the existence of facts which would show that the children were neglected children and presumed that it was in the children's interests to prevent a parental attempt to challenge proof of those facts. Such a presumption is at odds with the terms of s.82 which make it clear that the authority and duty of the parents or other guardians must not be interfered with by order of the Court unless it is found that the child is "neglected" or is "uncontrollable". Such a finding cannot be made without hearing the persons who have that authority and duty and who wish to be heard and who can practicably be heard in opposition to the making of the finding. In general, the principles of natural justice must be applied however grievously the parents or guardians may be suspected to have failed in their duty to the child brought before the Court. The right to be heard is the more important when the issues are grievous. The requirements of natural justice are not dissolved by an unproved assertion that the interests of the person who wishes to be heard are liable to forfeiture when the power to order forfeiture depends on a finding of the facts asserted.

11. There is a natural reciprocity between the duty and authority of parents with respect to the nurturing, control and protection of their child and the child's rights and its interests in being nurtured, controlled and protected. The natural reciprocity between the interests of parents and child means that both the parents and the child have an interest in proceedings leading to the exercise of a power which is apt to affect the relationship between them. As a parent holds his or her authority over a child primarily for the benefit of the child, parental authority is to be regarded more as a trust than as a power, but that is not to say that parental duty and authority are burdens of which parents can be relieved against their wishes and without their being heard when it is practicable to hear them. The natural parental right to discharge parental duties and to exercise parental authority cannot be taken away without giving the parents an opportunity to be heard where it is practicable to do so. A striking example may be found in Forsyth v. Children's Aid Society (1962) 35 DLR (2d) 690 where a temporary order of wardship was made to allow a new-born child to be given a blood transfusion contrary to the parents' wishes. The blood transfusion was given but subsequently the parents, who had not been given a proper hearing at the time, challenged the validity of the order. The order was quashed.

12. It would offend the deepest human sentiments as well as a basic legal principle to permit a court to take a child from its parents without hearing the parents when they can be heard and when they wish to be heard in opposition to the making of an order. A guardian who has been appointed in loco parentis is no less entitled to be heard. Only by ensuring, where practicable, that the parents or guardians have an opportunity to be heard can the Court be confident that it has protected whatever interests the child may have in its parents' or guardians' discharge of their duty to the child. It should not be thought that the child's interests in the discharge of that duty are waived by the child's rejection of the authority of its parents or guardians. It would be erroneous to regard the authority as existing only so long as it is accepted. A plea of "no cause to show" purportedly made by the child does not extinguish the parental interest in their relationship with the child, nor does it establish that the child has no continuing interest in his or her relationship with the parents. Until the matter is heard, the Court does not know whether the case is one where the child is seeking to reject an authority the exercise of which by the parents or guardians is beneficial. A child's rejection of the authority of parents or guardians may flow from an abuse of that authority or merely from chafing against domestic discipline of a kind which the parents or guardians may lawfully impose. In some cases of alleged incompetent or improper guardianship, it may be necessary to examine carefully whether the case falls into one category or the other, bearing in mind the broad scope of the discretion which parents and guardians must exercise in deciding how the child should be brought up. The plea of "no cause to show" does not relieve the Court of the duty to decide whether a child is a neglected child nor of the duty to hear the parents or guardians who wish to oppose the making of an order when it is practicable to hear them.

13. In the Court of Appeal, the appellant's submission that the parents were entitled to appear as a party as of right in the proceedings was rejected for reasons which were somewhat differently stated by each of their Honours (Kirby P., Mahoney and Priestley JJ.A.). One way in which the submission was put raised difficulties which affected the opinion of all members of that Court. It was submitted that the parents were entitled to be heard as "parties", and that that status is inconsistent with the inquisitorial nature of the proceedings. Because the proceedings are not strictly adversarial in character, their Honours thought that the parents could not be parties. Kirby P. found an analogy in Reg. v. Worthing Justices (1976) 2 All ER 194 where a Divisional Court denied mandamus to a child's mother who sought legal aid to be represented separately from the child in proceedings similar to those in the present case. It was held that the mother was not a "party to proceedings" under the legal aid statute. Then in Humberside County Council v. The Queen (1977) 1 WLR 1251; (1977) 3 All ER 964, an appeal was brought against the rejection by justices of evidence of an admission made by a guardian that he had ill-treated the child. The evidence was rejected because the guardian was not a "party" to the proceedings. The Divisional Court allowed the appeal, distinguishing between the operation of the hearsay rule in adversarial proceedings inter partes and its operation in proceedings similar to the present case. But the present case does not turn on the status of the parents in the proceedings. The application of the principles of natural justice does not depend on whether parents and guardians are to be described as parties. Those principles apply to the exercise of administrative powers where there are no parties, and they apply with no less force to the exercise of judicial powers where there are no parties. The application of the principles of natural justice depends more on the substantial nature of the proceedings - the issues to be determined, the powers available to be exercised and the interests apt to be affected - than on the form which the proceedings take. In that respect, an observation by Lord Widgery C.J. in Reg. v. Worthing Justices, at p 196, is of present relevance:

" It is evident to us, although we have only
seen the barest bones of this case, that there
will be criticisms of the mother's conduct and
that there will be an issue, express it how you
will, between the local authority and the mother
whether the mother is competent to have continued
custody of the child, or whether the local
authority should put (the child) into care, as
the language goes.

In proceedings of this kind the real issue is
nearly always between the local authority and the
parents ..."

14. The submission which was put in the forefront of the appellant's argument in this Court was put as an alternative submission in the Court of Appeal, namely, that the principles of natural justice required that the parents be heard in opposition to the making of an order. The strength of that submission was perhaps covered over by the submission that the parents were parties, and was rejected in that form. Thus Kirby P. held that, as the Act made express provision for parents to take some limited role in what were described as "neglect proceedings", it was "hopeless to argue that a parent has a 'right' to be a 'party' to the proceedings". His Honour said that "the care with which the Parliament has taken pains to define the role of the parent, excludes whatever wider role might otherwise have attached by the common law to the drastic consequences which the outcome of the inquiry can visit upon a parent". The limited role was found in four provisions of the Act. The first is in s.18 which creates a right of appeal from, inter alia, orders made under s.82. Section 18(2) permits an appeal which is taken by a child to "be taken by him or by his parent on his behalf and in his name". The second is in s.27B which provides for the court to determine whether a child who is an inmate of a charitable depot, home or hostel and in respect of whom an allowance is being paid under s.27A should be committed to the care of the Minister as a ward of the State. Sub-sections (2) and (4) require the parents or guardians to be notified of the hearing and there to be heard and to call witnesses. The third is in s.81(2) which empowers the court to require a parent or guardian to attend the court when a child is brought before it either as a neglected or uncontrollable child or as charged with an offence. The fourth is in s.89(1) which provides that, where a child is brought before the court either as a neglected or uncontrollable child or as charged with an offence and the court is satisfied that a prime facie case is made out, the child or his parent shall be given an opportunity to call evidence. With respect, these express provisions carry no implication that the legislature intended the principles of natural justice to be excluded. As Dixon C.J. and Webb J. said in The Commissioner of Police v. Tanos, at p 396:

" Such an intention is not to be assumed nor is it
to be spelled out from indirect references,
uncertain inferences or equivocal considerations.
The intention must satisfactorily appear from
express words of plain intendment."

15. The opinion of Kirby P. was also affected by a view that the Act effected a "merger of neglect and criminal proceedings". If that view were correct, the exclusion of parents or guardians from participation in criminal proceedings except to the extent prescribed by the Act would mean that parents or guardians were excluded to a like extent from participation in neglect proceedings. With respect, there is no merger. The two classes of proceedings are distinct. There is some uniformity of treatment of children when they are apprehended and some similarity of incidents attendant on the respective classes (for example, requiring a parent or guardian to attend the court), but the nature and purpose of "neglect proceedings" are quite distinct from the nature and purpose of criminal proceedings.

16. Mahoney J.A., in rejecting the argument that the appellant's guardianship rights supported her application to be a party and to be accorded the right to be heard, referred to the provisions of the Justices Act 1902 (N.S.W.) which are imported into the Act by s.19. However, the provisions of the Justices Act apply to proceedings under the Act only "so far as ... is not inconsistent with (the) Act", and cannot affect the substantive right of parents or guardians to be heard. Once that right is admitted, it is of no significance whether the parents or guardians be described as "parties".

17. Priestley J.A., holding that the welfare of the child is the first and paramount consideration in determining the matter of a neglected child, held that the appellant's custody rights were irrelevant to the decision of the issues of fact leading to the making of an order under s.82, that is, irrelevant to the questions whether the children were neglected and what was the best course to take in regard to the future of each child. For reasons earlier stated, a child's interests in being nurtured, controlled and protected by its parents or, in default, its guardians is not irrelevant to the determination of where the child's interests lie. Even if the appellant's custody rights were irrelevant to the issues of fact, that is not destructive of the right to be heard. The right to be heard arises chiefly from the consideration that a person's interests are apt to be affected if an adverse decision is made, whatever issues of fact are relevant to the making of the decision. And so the parents whose authority in respect of their children, whose access to them and whose duty to nurture, control and protect them are under challenge, are entitled to be heard on every issue of fact which is relevant to the decision which the court might make affecting those interests.

18. For these reasons the judgment of the Court of Appeal must be set aside. The appellant had and has a right to be heard which does not depend on the exercise of the magistrate's discretion but which the principles of natural justice require to be accorded to her. The appeal should be allowed and the judgments of the Court of Appeal and of Cantor J. should be set aside. An order in the nature of prohibition should go to the Children's Court at Cobham prohibiting the further hearing of the matters with respect to each child unless the appellant be heard. The appellant is entitled to her costs in this Court and below to be paid by the first respondent.

DEANE J.: I am in general agreement with the judgment of Brennan J. I would add some brief comments for myself.

2. In proceedings such as those involved in the present case, the interests of the child or children involved are paramount. The possible consequences to a parent, even an "unimpeachable" parent (see J. v. C. [1969] UKHL 4; (1970) AC 668, at p 715), of being deprived of custody of an infant child by an order of a court will be outweighed by the paramount interests of the child in a case where there is clear overall conflict between them. Those possible consequences to the parent, which may be emotionally, and even physically, devastating, are not however irrelevant to the factual issues and considerations involved in such proceedings or only relevant to the extent that there is coincidence or reciprocity between the interests of the parents and the interests of the child. Nor is the interest of the parents in such proceedings merely indirect or derivative in its nature. To the contrary, such proceedings directly concern and place in jeopardy the ordinary and primary rights and authority of parents as the natural guardians of an infant child. True it is that the rights and authority of parents have been described as "often illusory" and have been correctly compared to the rights and authority of a trustee (see, e.g., the Report by Justice, the British Section of the International Commission of Jurists, Parental Rights & Duties and Custody Suits, (1975), pp.6-7; Dingwall, Eekelaar and Murray, The Protection of Children, (1983), p.224) in that they are to be exercised "for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of his natural protector, both for maintenance and education" (United States v. Green (1824) 26 Fed. Cas. 30, at p 31; Goldstein, Freud and Solnit, Before the Best Interests of the Child, (1979)) and in that they are susceptible of being overriden or supplanted by the courts either in the exercise of statutory jurisdiction or "for the protection of infants, qua infants by virtue of the prerogative which belongs to the Crown as parens patriae" (per Lord Cottenham L.C. in In re Spence (1847) 2 Ph 247, at p 252 (41 ER 937, at p 938), cited by Cardozo J. in Finlay v. Finlay (1925) 148 NE 624, at p 626). Regardless, however, of whether the rationale of the prima facie rights and authority of the parents is expressed in terms of a trust for the benefit of the child, in terms of the right of both parent and child to the integrity of family life or in terms of the natural instincts and functions of an adult human being, those rights and authority have been properly recognized as fundamental (see, e.g., Universal Declaration of Human Rights, Arts. 12, 16, 25(2) and 26(3) and the discussion (of decisions of the Supreme Court of the United States) in Roe v. Conn (1976) 417 F Supp 769 and Alsager v. District Court of Polk County, Iowa (1975) 406 F Supp 10). They have deep roots in the common law. In the absence of an unmistakable legislative intent to the contrary, they cannot properly be modified or extinguished by the exercise of administrative or judicial powers otherwise than in accordance with the basic requirements of natural justice.

3. There is one further matter which I would mention. The argument before the Court again exposed some of the long-recognized deficiencies of the Child Welfare Act 1939 (N.S.W.). The notions that a child should be "apprehended" as a neglected child on a "warrant" issued by a justice; that a child so "apprehended" should be "brought before" a court to enter a "plea" to what is commonly described as a "complaint" and was, in the present case, actually set out in a "charge sheet"; and that, if no substantive order is justified, an allegedly neglected child is to be "admonished and discharged" are reminiscent of days when the wrong done to a child who was neglected was treated as if it were an offence on the part of the child. Those notions have no place in the legal system of a mature, responsible society (cf. A.C.T. Law Reform Commission, Report on the Law of Guardianship and Custody of Infants, (1974) p.13; Australian Law Reform Commission, Report on Child Welfare, (1981) p.208). It is to be hoped that there will be less room for their persistence if and when the necessary administrative action is finally taken to bring into effective operation the new system of procedure which was enacted by the Parliament of New South Wales as long ago as 1982 (see Miscellaneous Acts (Community Welfare) Repeal and Amendment Act 1982 (N.S.W.) and Community Welfare Act 1982 (N.S.W.)).

DAWSON J.: I concur in the judgment of Brennan J.

ORDER

Order that the order of the New South Wales Court of Appeal made on 9 August 1985 be set aside and in lieu thereof:

Order -

1. That the appeal from the order of Cantor J. made on

2. That the order of Cantor J. be set aside; and

3. That in lieu of that order a writ of prohibition

Order that costs of this appeal and the appeals to