Peter A Clarke

Hard situations make bad laws.  That legal maxim, that an extreme case makes bad law, should be scratched onto the screen of every policy maker in every government.  It usually ends in tears.

The terrible and tragic case of William Tyrrell has been covered extensively in the media since he disappeared from care.  That coverage, or at least the extent of it, found its way into the New South Wales Court of Appeal in  Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206.  In that case the Court rejected the Departments appeal from an order which rejected its application for an injunction suppressing a report on the disappearance of the child. In particular the publication that so vexed the Department it was  information that the child was placed in foster care, was under the parental responsibility of the Minister for Family and Community Services and/or was a ward of the State.  Also part of the application was an injunction requiring certain posts to be removed from the Walking Warriors 4 Missing Children Facebook page.

In NSW government bid to protect privacy of children in care the Australia reports that the Department wants to amend the law to impose reporting restrictions on children in care.  Obtaining by legislative amendment what the court would not grant by injunction is one way to look it.  This has resulted in an immediate push back by the New South Wales children’s rights lobby group as reported in Lobby group attacks push to ensure privacy for kids in care.

There is and always has been a balance required regarding privacy protections over other factors, including freedom of speech and governmental accountability.

Changing the law on the back of an adverse decision is not unusual but usually regrettable.  Back to the maxim, hard situations make bad laws.  Knee jerk legislating almost invariably is clumsy, unfocused and leads to unintended consequences.

The original Australian article provides:

The Department of Family and Community Services says it will lobby the government for “legislative amendment” after three judges from the NSW Court of Appeal upheld a ruling that the need for accountability in the out-of-home care system trumped any damage the information would cause to William.

In a decision that has cast uncertainty over the interpretation of a section of the NSW Children and Young Persons (Care and Protection) Act 1998, judge Paul Brereton found in January there was “substantial public interest in accountability and scrutiny of the out-of-home care system, and in accuracy of reportage of the circumstances of (William’s) disappearance”.

He ruled against FACS, which had applied for a court order permanently banning children’s rights advocate Allanna Smith and Facebook group Walking Warriors 4 Missing Children from publishing that William was in state care when he vanished.

The secretary of FACS appealed against Justice Brereton’s decision, but late last month the Court of Appeal agreed with his analysis of the act.

A spokesman for FACS said the department would “be seeking legislative amendment so children’s safety and privacy in care is better protected”.

William was three when he disappeared during a visit to the home of his foster “grandmother” in Kendall, on the NSW mid-north coast, on September 12, 2014. Despite one of the country’s biggest missing-person investigations, a widespread campaign and a $1 million reward, he has not been found.

He was seven months old when he was removed from his mother, revealed last week as western Sydney woman Karlie Tyrrell, and put with foster carers living in Killara, in the city’s north. William’s father, Brendan William Collins, has also been named.

The FACS spokesman would not comment on William’s case, but said children were put in foster care only under extreme circumstances.

“The decision to remove a child from their parents is not a decision taken lightly,’’ he said. “Other ­options are always ­explored and all decisions to remove children at risk of significant harm are overseen by the courts, which make the final decisions. Practitioners, specialist consultants and legal officers all have input into the decision to remove a child from their parents.

“Our first preference and priority is to work with the family to restore children to their parents wherever it is possible and safe to do so.

“All decisions of FACS to ­remove a child from his or her birth parents are reviewed by the Children’s Court, which is responsible for making a final decision and order. During this process, children are allocated an independent legal representative to represent their interests.”

Experienced family lawyer Duncan Holmes said the decision marked a major shift in how the act had been viewed.

“I think it’s a landmark decision because this shroud of secrecy that goes over FACS and its involvement in children’s lives like William has now been lifted,” he said.

A spokesman for Family and Community Services Minister Pru Goward said it was too early to comment on any changes and she would wait for legal advice ­before doing so.