Background
The Children’s Court made final orders in November 2023 allocating parental responsibility for LP, a young child, to the responsible Minister until LP turned 18. Subsequent reports showed that the long-term placement contemplated by the care plan had broken down and that LP remained without an identified long-term placement.
At a June 2025 review mention, when no application to vary or rescind the care orders was before it, the Children’s Court purported on its own motion to grant the Department Secretary leave under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). After LP’s independent legal representative later filed a s 90 application, the Children’s Court granted leave again in August 2025. The Secretary sought judicial review of both decisions.
The Court’s Holding
The Supreme Court held that both grants of leave were affected by jurisdictional error. The Children’s Court lacked power to grant leave of its own motion in June when no leave application was before it. In making the June and August decisions, it also failed to address the mandatory considerations prescribed by ss 90(2B) and 90(2C).
The Secretary was additionally denied procedural fairness because it was not given an adequate opportunity to address whether leave should be granted. That denial was material: submissions from the Secretary could realistically have affected the result.
The Court set aside both grants of leave but did not decide the merits of the independent legal representative’s proposed s 90 proceeding. It remitted the question whether leave should be granted to the Children’s Court for determination according to law, ordered each party to bear its own costs, and imposed pseudonym and nationwide non-publication orders protecting the child until September 2046.
Key Takeaways
- A Children’s Court cannot grant s 90 leave on its own motion when no application for leave is before it.
- A decision on s 90 leave must expressly confront the Act’s mandatory considerations, not merely identify concerns about placement or an outdated care plan.
- Parties materially affected by a proposed grant of leave must receive a meaningful opportunity to respond.
Why It Matters
The decision reinforces that concerns about whether a care plan has been implemented do not permit the Children’s Court to bypass the statutory process for reopening final care orders. Section 90 leave is a jurisdictional gateway requiring a proper application, consideration of every mandatory factor, and procedural fairness.
The judgment does not foreclose a renewed application concerning LP. It requires the Children’s Court to decide any such application afresh and according to the statutory criteria, without the invalid grants of leave influencing the outcome.