Litigation guardian judgment
Judge criticises police who handcuffed boy
Police overstepped their authority when they handcuffed a 15-year-old schoolboy in the care of the Department of Child and Family Services and locked him up at the Co-Ed prison last week, a Supreme Court judge has ruled.
Assistant Justice Mark Pettingill’s written judgment said that police had taken “the draconian step of effectively incarcerating a minor” after the boy skipped his flight to a care institution in Utah and that they had acted unlawfully.
The boy, who cannot be identified for legal reasons, was represented by Tiffanne Thomas, a litigation guardian, who asked for the court to rule that he had been unlawfully detained.
Mr Justice Pettingill wrote that the boy had been suffering from “family challenges” in March, when Magistrates’ Court put him under the care of the DCFS.
The boy was placed in a residential centre, but found to be “noncompliant”.
The DCFS applied to the court to transfer the boy to a Utah institution on April 29.
The judgment said the boy at first complied, and “arrangements were made for his immediate transport to the airport”.
Mr Justice Pettingill noted in his May 3 ruling that the boy had asked to be allowed to pick up personal items.
The request, which the judge found was “by no means unreasonable”, was denied for time reasons.
Mr Justice Pettingill wrote: “It is a significant measure to remove a child out of the jurisdiction to a foreign country, and consideration should be given to anything that may add comfort to such an action.”
He added the refusal appeared to have “tipped the pebble off the cliff”.
The boy left the DCFS van at the airport, went to the bus stop, returned to the residential centre and went to school the next day. Three police officers and two social workers went to the school and the boy was handcuffed and taken away.
Mr Justice Pettingill found that despite a recovery order being issued, police lacked the legal authority to take a minor into custody.
He added that “the court is aware that this is not the first instance of the police acting beyond their powers at the request of the DCFS”.
By agreement with the Commissioner of Prisons, the boy was taken to the Co-Ed facility on May 1.
Mr Justice Pettingill questioned why an emergency application had not been made at Magistrates’ Court that same day for an order to send him to the Co-Ed facility.
Ms Thomas gave an affidavit that the boy was being held unlawfully in a prison environment.
Lawyer Adam Richards appeared for the boy, with Ms Thomas as litigation guardian at the May 3 hearing.
Brian Moodie of the Attorney-General’s chambers represented the Commissioner of Prisons and the Director of Child and Family Services.
Mr Moodie told the court that DCFS staff were sent to the prison to supervise the boy and that he was not under the control of prison guards.
Mr Justice Pettingill, although he said that was “some amelioration”, said that holding the boy at the Co-Ed amounted to detention in prison — not in an approved residential centre.
He added that the circumstances had highlighted the importance of the independent role of litigation guardians.
Mr Justice Pettingill said he accepted that the Attorney-General had found the Co-Ed acceptable as a housing facility but he disagreed that that was “sufficient or correct in law”.
The boy was held at the Co-Ed for several days before he was taken to court last Friday.
Mr Justice Pettingill said that by then “the proverbial horse had well bolted”.
The judge agreed that DCFS had major responsibilities that on occasion required “out-of-the-box thinking”.
But he said that stronger “checks and balances” were needed. Mr Justice Pettingill added that practical problems that involved minors should be tackled through amendments to legislation rather than “giving a broad interpretation to the existing law”.
He added that “would be to grant a licence to the authorities involved to act outside of the proper guidelines of the law, allowing for injustices to occur and civil liberties to be violated”.
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