GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157

GR v Secretary, Department of Communities and Justice; Secretary, Department of Communities and Justice v BW (a pseudonym) [2021] NSWCA 157

Section 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), as it stood prior to amendment effective 23 June 2021, did not require the Children's Court to appoint a guardian ad litem for a child or young person incapable of giving proper instructions; rather, it directed the Court to consider discretionary factors under s 100, and only appoint if special circumstances and benefit are established. The primary judge's mandatory construction was incorrect, and failure to consider these factors constituted error.

Jurisdiction
Australia
Judgment Date
30 July 2021
Procedural Posture
Appeal and Judicial Review / Court of Appeal Judgment
Outcome
Appeal allowed; orders appointing guardians ad litem quashed; no orders as to costs.
Legal Topics
['care Proceedings' 'appointment of Guardian Ad Litem' 'statutory Construction' 'interpretation of Children and Young Persons (care and Protection) Act 1998 (nsw)']
['child Welfare' 'statutory Interpretation'] ['care Proceedings' 'appointment of Guardian Ad Litem' 'statutory Construction' 'interpretation of Children and Young Persons (care and Protection) Act 1998 (nsw)']

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Procedural Posture

Appeal and Judicial Review / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires mandatory or discretionary appointment of a guardian ad litem' 'Whether a child or young person is a party to proceedings under the Care Act' 'Whether the Court adequately considered discretionary factors under s 100 when appointing a guardian ad litem']

Ratio Decidendi

Section 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), as it stood prior to amendment effective 23 June 2021, did not require the Children's Court to appoint a guardian ad litem for a child or young person incapable of giving proper instructions; rather, it directed the Court to consider discretionary factors under s 100, and only appoint if special circumstances and benefit are established. The primary judge's mandatory construction was incorrect, and failure to consider these factors constituted error.

Court Disposition

Appeal allowed; orders appointing guardians ad litem quashed; no orders as to costs.

Orders

  • ['Appeal allowed (GR v Secretary)' 'Set aside both order 2 made on 17 November 2020 and order made on 27 May 2021 appointing Mr William Hoyles as guardian ad litem for AB' 'No order as to costs in this Court' 'Separate questions (BW) answered as follows: Question 1 and 2 not necessary to answer; Question 3 – s...