PH v Department of Communities and Justice (DCJ) [2026] NSWChC 4

Catchwords: CHILD WELFARE — Care proceedings — matter remitted from the Supreme Court — application by mother to discharge Guardian ad litem — capacity to give proper instructions — role of GAL — best interests and paramountcy principle — application refused — participation in proceedings Children's Court New South Wales Amendment notes Medium Neutral Citation: PH v Department of Communities and Justice (DCJ) [2026] NSWChC 4 Hearing dates: 27 July 2026 Date of orders: 13 August 2026 Decision date: 13 August 2026 Jurisdiction: Care and protection Before: Judge Skinner, President of the Children’s Court of NSW Decision: The application to discharge the guardian ad litem is refused. Catchwords: CHILD WELFARE — Care proceedings — matter remitted from the Supreme Court — application by mother to discharge Guardian ad litem — capacity to give proper instructions — role of GAL — best interests and paramountcy principle — application refused — participation in proceedings Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) Children’s Court Rule 2000 (NSW) Cases Cited: CM v Secretary, Department of Communities and Justice [2022] NSWCA 120 Department of Communities and Justice (DCJ) and the Holmes Children [2026] NSWChC 2 Gibbons v Wright [1954] HCA 17 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 PH v Children’s Court of New South Wales [2026] NSWSC 589 Slaveski v Victoria [2009] VSC 596 Texts Cited: NSW Government, Guardian ad Litem Code of Conduct (May 2026) Category: Procedural rulings Parties: Secretary, Department of Communities and Justice PH (The Mother, self-represented) Guardian ad Litem for the Mother Representation: Solicitors: Mr Hosking for the Secretary Ms Connor for the Guardian ad Litem for the Mother File Number(s): 2021/00221089 2025/00084996 Publication restriction: Pseudonyms have been used to protect the identity of the children and family members. JUDGMENT The Mother, PH, seeks the discharge of a guardian ad litem (GAL) appointed to act for her in care proceedings for her children. The Court has an implied power to discharge a GAL ( PH v Children ’ s Court of New South Wales [2026] NSWSC 589 at [34] ). The Court must form an opinion about whether the mother is capable of giving proper instructions to her legal representative , ( s 101 (1) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ( ‘ the Care Act ’ ) ) . The Secretary ’ s representative prepared written submissions that outlined relevant law. The parties did not take a position on the mother ’ s application . Background The mother has seven children. Her eldest five children were subject to care proceedings in 2018 that resulted in final orders restoring the children to their mother. The current proceedings were initiated in March 2025 when the Secretary fil ed s 90 applications for the five eldest children and s 61 applications for the two youngest children. The proceedings involve five fathers – her two eldest children share a father and her fourth and fifth child ren share a father . In March 2025 , t he mother was detained as an involuntary patient in a mental health ward. The mother ’ s lawyer asked the Court to appoint a GAL to act on behalf of the mother. The Children ’ s Magistrate relied on a letter from the mother ’ s treating psychiatrist which indicated that the mother was incapable of instructing her lawyer due to her mental illness. The Children ’ s M agistrate appointed a GAL. The mother was discharged from hospital on 1 April 2025 . An application for a community treatment order was refused by the Mental Health Review Tribunal as the presiding member believed the mother would take her medication . On 12 December 2025 , the mother asked the Children ’ s Court to discharge the GAL. The Children ’ s Magistrate refused her application. In January 2026 the mother filed in the Supreme Court seeking removal of the GAL. On 27 May 2026 , Justice Kunc remitted the matter to the Children ’ s Court for consideration of discharge of the GAL . The mother appeared for herself in the application to discharge the GAL. The mother ’ s lawyer and GAL attended the hearing. The Options If the Court discharges the GAL , the mother will give direct instruction s to her lawyer or represent herself . If the Court does not discharge the GAL, the GAL will give direct instructions to the mother ’ s lawyer. The Evidence from the Mother It is the mother ’ s application. The mother relies on: A letter from her treating psychologist, Dr David Guthrie. Emails between the mother and Breastfeeding Advocacy Australia, to evidence her capacity to advocate for herself to provide breast milk to her young children whilst she was an involuntary patient. ‘ Previously filed affidavits ’ noting ‘ this evidence proves a clear pattern of institutional misconduct ’ ( t he mother has filed a large volume of material in the substantive proceedings ). Dr Guthrie has been treating the mother since December 2018. He notes the mother has experienced complex trauma. He said the removal of her children has retriggered feelings of ‘ helplessness, powerless and frustration ’ . He notes she is articulate, of superior intelligence and is assertive in providing her views. Dr Guthrie said ‘ I respectfully acknowledge I am not fully understanding the role of the Guardian Ad Litem, should one be appointed in this case. I understand that it pertains in part to acting in the best interests of the parent … in court matters where the plaintiff is unable to understand or instruct legal counsel ’ . The mother filed written submissions seeking: The appointment of the GAL be rescinded . That she be granted the right to provide direct instructions to her own legal representation, or in the absence of representation, to speak on her own behalf . That the Court order a formal rectification of the ‘ documented errors and procedural abuses ’ committed by the Department . The mother ’ s submissions conclude that she has forensically audited the Department ’ s files and believes she has exposed a ‘ clear pattern of institutional misconduct ’ , and ‘ exposed systemic misinformation ’ . The mother distributed speaking notes during the hearing. She raised the following ‘ factual points ’ as proof of her capacity: 1) The Supreme Court Remittal: Between January and May 2026, I successfully self-represented in the Supreme Court of NSW, resulting in this matter being remitted back to the Children’s Court. This direct action demonstrates my high-level legal comprehension and capacity to initiate complex proceedings. 2) Documented History in this Jurisdiction: I have a documented history of successfully navigating this jurisdiction, including personally and successfully cross-examining an expert witness in the Goulburn Children’s Court in 2019. 3) Demonstrated Executive Function and Trade Training: my capacity for long-term executive functioning is absolute. This is established by my 2002-2006 Trade Diaries as an electrical systems apprentice, and my ability to rapidly compile and index the evidentiary archive before the Court today. In a high-demand, highly structured environment, I thrive and consistently perform at a high level. 4) The June 16 Obstruction: The communication breakdowns in this matter are not due to my lack of capacity, but professional obstruction. As sworn in my affidavit, on June 16, 2026, I proactively emailed my drafted factual evidence to Ms. Connor and Mr. Stewart, and followed up via telephone. They completely failed to acknowledge or assist me, forcing me to finalize independently to comply with Her Honour ’s orders. 5) Failure to Communicate: By refusing to provide a direct contact number or engage with my June 16 instructions, Mr. Stewart has fundamentally failed in his statutory duty to take proper instructions, relying instead on Department-provided insights. 6) Proactive Regulation and Insight: I have been actively working with Clinical Psychologist David Guthrey since 2018. His clinical evidence confirms my intelligence is in the ‘Superior range’ , I possess a ‘good lay understanding of the law’, and my emotional responses are proportionate to complex trauma and systemic dismissal, not a lack of cognitive capacity. 7) Foundation of Misinformation: The assessments relied upon by the Department to justify a Guardian are built on a foundation of misinformation. My forensic audit of the Department’s files, supported by my Supplementary Affidavit, exposes critical contradictions, including the Department’s failure to identify their own documented safety risks. 8) Assurance to the Court: The burden is on the Department to prove I lack capacity. My baseline is stating things factually and succinctly. I assure the Court that I will remain respectful, responsible and receptive to what is required of me today. The Evidence from the Department The Department relies on: Diag n ostic assessment report by Dr Chantel Ashkar, psychologist . A n affidavit by Stephen Stuart dated 17 February 2026. Mr Stuart is currently the mother ’ s GAL. A report prepared by Consultant Neuropsychologist, Dr Sally McSwiggan, assessing the mother ’ s capacity to give proper instructions to her lawyer. The letter of instruction is included. Dr Chantel Ashkar assessed the mother in May 2024. Dr Ashkar determined the mother met the criteria for Autism Spectrum Disorder , with a Level 2 (substantial support needed) in differences of social communication, interaction, and self-stimulating regulatory behaviours. The diagnosis was made without an intellectual disability or language delay . Dr Ashkar also noted the mother ’ s co-occur r ing ADHD-combined type which had been previously diagnosed, and extensive trauma history. Dr Ashkar determined the mother ’ s intellectual functioning , verbal comprehension, perceptual reasoning, working memory and processing speed fell in the superior to high average ranges. Dr Ashkar believed the mother ’ s communication abilities , ability to make independent choices, exhibit self-control and take responsibility where appropriate were in the extremely low range. Her leisure skills, ability to interact socially, initiate and maintain friendships, express and recognise emotions, and assist others when needed was in the extremely low range. The mother ’ s ability to function in the community was in the low range, and her level of functioning in the home was in the extremely low range. In his affidavit dated 17 February 2026, Mr Stuart, said he met the mother in February to undertake a capacity assessment. Based on his assessment of the mother in the meeting and her previous correspondence, he did not make an application to discharge his appointment. He was not of the view that she could provide proper instructions to a legal representative or represent herself. He described her as fixated, extremely agitated and noted she left the assessment early, stating that he was ‘ not the real GAL ’ . I adopt the background information and summary of Dr McSwiggan ’ s evidence by Kunc J at paragraphs 18 and 19: [18] On 17 April 2026, I made orders in chambers appointing Dr Sally McSwiggan as a Court appointed expert to conduct: 1. An assessment of: A. Whether [PH] is capable of managing her affairs. B. Whether [PH] is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision is likely to be necessary in the course of legal proceedings concerning the care and protection of her children. C. Whether [PH] is capable of giving proper instructions to her legal representative. D. Whether PH is capable of representing herself in any legal proceedings concerning the care and protection of her children. In considering this question please address whether, in your opinion, the level of mental capacity required to represent herself is greater than that required to instruct her legal representative. [19] The Court received Dr McSwiggan’s report on 3 May 2026. Dr McSwiggan’s conclusions were: (1) As to PH’s capacity to manage her affairs, Dr McSwiggan concluded that PH “can manage her affairs but would likely benefit from support, limits and boundaries, when making complex decisions during periods of heightened stress”. (2) As to her capacity to understand the issues on which her consent or decision would likely be necessary in the course of legal proceedings concerning the care and protection of her children, Dr McSwiggan’s report is more guarded, including: “62. In my opinion, these abilities support her capacity to understand discrete issues (the meaning and implications of interim and final orders, proposed contact arrangements, expectations of case plans, participation in assessments or treatment, and the potential consequences of compliance/non-compliance) when these issues are explained in a clear, structured and concrete manner. However, she showed significant difficulty understanding the roles and functions of legal and clinical professionals where she frequently interpreted processes as covert, improper, or part of broader misconduct. These fixed beliefs will likely override factual explanations and limit her ability to retain, use and reason with information in a measured, reality-based way.” (3) As to PH’ s ability to give instructions to her legal representative, Dr McSwiggan concluded that PH “would not be capable to provide proper, cogent instructions to a legal representative in the current care proceedings in a consistently reliable way due to impaired capacity to prioritise and confine instructions to legally relevant issues, and reduced capacity to engage collaboratively with professional advice when it conflicts with her fixed and often persecutory beliefs”. (4) As to whether PH was capable to represent herself in CC care and protection proceedings, while Dr McSwiggan acknowledged that PH had several strengths relevant to her participation in those proceedings (including that she has “intact orientation and memory, demonstrates strong verbal ability and would be able to comprehend and recall detailed chronology, names and content of correspondence”), Dr McSwiggan concluded, after a thorough exposition, that PH “does not have the capacity to represent herself in the Children’ s Court care proceedings to an adequate standard, due primarily to impaired ability to maintain focus on legally relevant issues, tendency to become derailed by preoccupations and grievances, and reduced capacity to engage flexibly with contrary information and procedural direction”. I further adopt Justice Kunc ’ s observations at paragraph 7 , where he noted that on the occasions the mother appeared before him : … she was always courteous, respectful and well prepared. From time to time she was also understandably tearful about the circumstances of her children. However, and I intend no criticism, it was also obvious that she was trying very hard to “keep it together” and not go off on tangents. Despite her obvious determination to remain focussed, she displayed precisely the behaviour identified in the neuropsychological report which had been obtained for the purpose of these proceedings and which I set out in [19(3) and (4)] below. At paragraph 40 Justice Kunc stated: I have very little confidence that she would be able to provide meaningful assistance to the Court, in her own interests, on the factual and legal issues raised. Despite what I am sure would be her very best efforts, I am satisfied that it is more than likely, to accept and adapt Dr McSwiggan’s conclusion (see [19(4)] above), that PH would become derailed by preoccupations and grievances, and be unable to engage flexibly with contrary information and procedural direction. The Legislation The relevant legislation (annexed to the judgment) is contained in section 98 and section 101 of the Care Act , supported by clause 29 of the Children ’ s Court Rule 2000 (NSW) . The Role of a GAL A GAL is appointed by the Court from a panel administered by the Department of Community Services. A GAL has relevant qualifications and experience to undertake the role and they are appointed to the panel for three years, with opportunities for extensions to their term. A GAL is required to comply with a C ode of C onduct. Clause 5.1 provides: A GAL has responsibility and authority to make decisions in relation to the client only in relation to the legal proceedings in which they have been appointed. A GAL when making decisions shall: • promote the autonomy of the client; • safeguard and represent the interests of the client; • take into account views, opinions, wishes and feelings as expressed by the client; • instruct the legal representative of the client in the conduct of the proceedings; and • take into consideration any other special circumstances. Clause 7 provides: A GAL must provide quality services to the client and ensure fairness. This entails acting efficiently, equitably and professionally; and treating individuals courteously, attentively and sensitively. It also includes arriving punctually for both in-person and online hearings. A GAL should: • inform the client of the procedures to be followed and their rights and obligations; • consider the client’ s views before making a decision; • advise the client of the reason(s) for a decision; • not be under the influence of alcohol or prescription drugs to a degree that adversely affects the capacity to work and not use any form of illicit drugs or substances while carrying out the functions of a GAL; • not use offensive or obscene language; and • wear attire which reasonably reflects public expectations and community standards, for both in-person and online hearings (for example collared shirt and enclosed shoes); • arrive punctually for both in-person and online hearings, so that they can run smoothly. A GAL should also have regard to family dispute resolution conferences and mediations, and speaking with the client ’s family and community for case management. Right of Appearance Section 98 gives the mother the right to appear in person, be represented by a lawyer or be represented by an agent. Where the Court is of the opinion that a party is not capable of adequately representing themselves , the C ourt may require them to be legally represented (section 98(2)). If the Court is of the opinion that a person is incapable of giving proper instructions to their legal representative the Court may appoint a GAL. The capacity of a party determines whether they can represent themselves, instruct a lawyer, or be represented by a GAL. To assess capacity the Court should consider what is required of the party to fulfil each role. A person who has the capacity to represent themselves will have greater capacity than a person who is not capable of representing themselves. A person who is not capable of representing themselves may be capable of giving proper instructions, unlike a person who may require the appointment of a GAL or lead to the C ourt appointing a legal representative to act as amicus curiae , as per [ 437 ] of Gibbons v Wright [1954] HCA 17 . C apacity to Give Proper I nstructions to a L egal Representative There is a common law presumption that an adult has capacity . If this capacity is contested, it must be proven by the party contesting it , per Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 at [17] . A person has the right to participate in litigation in their own name. If there is a question a bout the capacity of a person to participate in litigation, a C ourt may be satisfied of their incapacity in various ways, per [25] of CM v Secretary, Department of Communities and Justice [2022] NSWCA 120. These may include the Court ’ s assessment of instructions provided, a physical disability (e.g. a coma), or other medical or psychiatric evidence. The C ourt should review medical evidence of incapacity prior to appointing a representative for a party who lacks capacity, unless the incapacity is so obvious that medical evidence is not required , per L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [ 27 ]. I n Slaveski v Victoria [2009] VSC 596 Justice Kyrou formulated issues that may be relevant for Courts when determining whether a person requires a litigation guardian: (a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims? (b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her? (c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case? (d) Is the plaintiff able to understand the Court processes and the basic rules for conducting his or her case when these matters are explained to him or her? (e) Is the plaintiff able to understand Court rulings made during the trial when they are explained to him or her? (f) Assuming the plaintiff is able to understand Court processes, the basic rules of conducting his or her case and Court rulings, is he or she capable of complying with them and directions given by the judge? (g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse? (h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)? (i ) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her? (j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her? (k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view? (l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submissions and other developments in the proceeding as at the time the proposal is made? (m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff’s physical or mental health? Capacity to G ive P roper L egal I nstructions in C are Proceedings The Care Act contains provisions that support the participation of parents. As noted in Department of Communities and Justice (DCJ) and the Holmes Children [2026] NSWChC 2 at [55], parents in care proceedings are parties with rights to information and representation. The power to appoint a GAL is a protective power that safeguards and represents the interests of a parent in circumstances where the parent lacks the capacity to safeguard and represent their own interests, or to properly instruct a lawyer to safeguard and represent their interests. The appointment of a GAL can reduce disadvantages to a parent who lacks capacity. This power sits alongside the paramountcy principle that in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. It is in the interests of a child for their parent to participate in the proceedings to the best of their capacity. Prior to making final orders the Court must determine whether to accept the Secretary ’ s assessment as to whether there is a realistic possibility of a child being restored to the care of their parents. The principles of the Act require the Court to take the least intrusive intervention into the life of the child and their family (s 9 (2)(c)) and if a child is placed in out of home care there will be efforts to retain relationships with birth family, where safe and appropriate (s 9 (2)(f)). A Court will make better decisions about the care arrangements for a child when the Court has access to the best information about the options for a child. For many children the best information can be accessed through their parents. Despite section 101(2) (extracted below ), the appointment of a GAL is not limited to people experiencing complete incapacity or substantial functional impairment . A party in care proceedings needs to have the capacity to understand the nature of the proceedings, identify the issues in the proceedings, prepare and file evidence that is relevant to the resolution of issues in the proceedings (usually as favourable to their interests), give evidence in the proceedings, understand risks of actions or omissions, and make concessions and compromises as appropriate in the interests of the safety, welfare and well-being of a child . In care proceedings the C ourt receives evidence about the parenting capacity of parents or carers and the needs of children, including a child ’ s need to maintain connection with family and kin. T he C ourt is required to make findings about whether there would be an unacceptable risk of harm if a child is restored to the care of their parent . Being a parent can be a core part of someone ’ s identity and it can be difficult to remain calm and focused in proceedings that challenge whether a person has the skills and capability required to raise their own children , particularly when opinions about ‘ good enough ’ parenting differ amongst individuals, families, and cultures . The Court must not make a final care order unless it expressly finds that permanency planning has been adequately and appropriately addressed (s 83). In making this determination the Court must consider evidence about the child ’ s needs and how those needs are going to be met. Parties in care proceedings must assist the C ourt to find relevant facts that form the basis of care orders. A p arent may challenge evidence that they lack the capacity to safely parent their child and they may file evidence that indicates they have the capacity to safely parent their child . A parent may file evidence that is relevant to the needs and capacity of the child. Where parents have separated a parent may file evidence regarding concerns about the capacity of the other parent. If a child cannot safely be restored to a parent they may be placed with family or kin and a parent may file evidence about whether the proposed carers have the capacity to meet the needs of the child . A parent may file evidence about why they, and others, should have contact with the child , and a parent may file evidence to support their opposition to contact between the child and members of their family or kin network. A legal representative will be instructed to prepare the evidence and make submissions to support factual findings that protect and safeguard the interests of the parent. Although Slaveski is a Victorian authority, the issues identified by Justice Kyrou when appointing a litigation guardian assist in assessing the mother ’ s capacity to give proper instructions as required for the appointment of a GAL: T he mother cannot distinguish the evidence that will support her position . S he does not always understand what is relevant or will be relevant in the proceedings . S he cannot properly assess the impact of evidence on her cas e. S he can understand court processes and comply with basic rules . S he can understand c ourt rulings . S he attempts to comply with rulings or directions but struggle s to comply in court when frustrated or upset (noting she said she did not comply with a filing direction due to a lack of assistance from her lawyer and the GAL) . S he understands the roles of counsel but can be irritable with practitioners who represent opposing parties . S he is not abusive or threatening but her displeasure is known . S he has insight into the possible adverse consequences of her behaviour in court and attempts to regulate herself but lacks insight into how this conduct might impact an assessment of her ability to work effectively with the Department if required to improve her parenting capacity . S he appreciates the risk that her children will not be restored to her care but does not understand the potential for a GAL to assist her in strategic participation in litigation to improve the potential for her children to be restored to her care or for her family time with her children to increase . S he is not capable of assessing the merits of her case having regard to the state of the evidence . S he is not capable of assessing settlement potential . T here is a risk that the stress and pressure of litigation might harm her mental health . Delay When a parent is incapable of giving proper instructions , the C ourt must filter information to identify evidence that is relevant to the issues that need to be resolved in the proceedings. The mother has filed a substantial volume of material that is important to her but not all relevant in the proceedings. The finalisation of proceedings is delayed due to the high volume of material filed , poor compliance with directions, the requirement for other parties and the C ourt to identify relevant material , and longer C ourt appearances due to the need to manage her presentation in C ourt and the content of information presented to the C ourt . Section 83 requires the Court to determine whether to accept the Secretary ’ s assessment about the viability of the restoration of a child to their parent within 6 months of making an interim order for children under 2 years and within one year of making an interim order for children aged 2 or older. When making orders for assessments, joinder, or leave the Court must consider the impact of delay. Delay in care proceedings can impact the stability of care placements and the children ’ s sense of permanency . Any decision that delays final orders in care proceedings must be a decision that is in the interests of the safety, welfare and well-being of the child. Determination The mother loves her children, and she is committed to caring for her children. She has been assessed to have superior intelligence, verbal comprehension, perceptual reasoning, working memory and processing skills. She has an impressive ability to review evidence, raise objections and outline her experiences and perspectives. She functions at a high level and presents as articulate, organised, and punctual. She is focused on issues of relevance for her, and she has insight into her tendency towards distraction. Given the mother ’ s presentation, I acknowledge that the Court may not have appointed a GAL had she not been an involuntary patient during March 2025. The Supreme Court proceedings have given the Children ’ s Court access to expert evidence about capacity that would rarely be available in substantive care proceedings. Observations of the mother during these proceedings are consistent with Justice Kunc ’ s observations at paragraph 40 and Dr McSwiggan ’ s opinion that she does not have the capacity to properly instruct a lawyer . Although Dr Guthrie notes the mother is assertive in providing her views Dr Guthrie concedes a lack of knowledge about the role of a GAL. This op inion does not contradict Dr McSwiggan ’ s evidence . The fact that the mother does not always respond directly to questions, is unable or unwilling to make concessions or compromises in the interests of her children, perceives injustice, feels hurt, and can become heightened when dysregulated, alone, does not mean that the mother lacks the capacity to provide proper instructions to a legal representative. An assessment that she lacks capacity arises from her inability to focus on relevant issues, her difficulty distinguishing relevant evidence from irrelevant evidence, her preoccupation with beliefs that impede change , and her failure to engage in proceedings in a manner that supports the C ourt to determine facts that support final orders that a re in the interests of the safety, welfare and well-being of her children. Section 71 of the Care Act provides that a Court cannot conclude that the basi c needs of a child or young person are likely not to be met only because of a parent or primary care-givers disability. Despite the intention of the legislation, many of the risk factors that impact the children relate to symptoms of the mother ’ s disability which are also relevant to her capacity to give proper instructions to a lawyer. The Court must ensure access to justice for people who live with neurodiversity, cognitive impairment or mental illness by balancing their right to agency with their capacity to give proper instructions to facilitate their access to justice. The mother seeks discharge of the GAL, but I note the implied power to discharge a GAL must sit alongside a power for the Court to assess whether it is more appropriate that the mother have a GAL or that the mother ’ s lawyer acts as amicus curiae. The Secretary submits that it would be preferable for a GAL to act on behalf of the mother than for a lawyer to act amicus curiae. A GAL would promote the best interests of the mother whereas a lawyer would assist the mother as a friend of the C ourt. Although the mother opposes the GAL, a GAL is more capable of instructing a lawyer in the preparation of a case to protect and represent the mother ’ s interests than a lawyer acting amicus curiae. The m o ther ’ s application to discharge the GAL is refused. Despite this, she should continue to attend and participate in proceedings . T he GAL will act on her behalf and provide instructions to her lawyer to ensure her interests are protected in the proceedings , in accordance with the GAL Code of Conduct . In administering the GAL panel, the Department should make efforts to appoint a GAL who can work effectively with the person who requires a GAL . I will speak to the mother throughout the proceedings and will afford her opportunities to address the C ourt. Where there is a conflict in information, I will rely on evidence that is filed by her lawyer, instructed by her GAL, and any submissions made by her lawyer. The applicable law within the Care Act and the Children ’ s Court Rule referenced above has been extracted below: 98 Right of appearance (1) In any proceedings with respect to a child or young person— (a) the child or young person and each person having parental responsibility for the child or young person, and (b) the Secretary, and (c) the Minister, may appear in person or be legally represented or, by leave of the Children’s Court, be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. (2) However, if the Children ’s Court is of the opinion that a party to the proceedings who seeks to appear in person is not capable of adequately representing himself or herself, it may require the party to be legally represented. (2A) If the Children ’s Court is of the opinion that a party to the proceedings is incapable of giving proper instructions to a legal representative, the Children’s Court may appoint a guardian ad litem for the person under section 100 or 101 (as the case may require). (3) In any proceedings with respect to a child or young person, any other person who, in the opinion of the Children ’s Court, has a genuine concern for the safety, welfare and well-being of the child or young person may, by leave of the Children’s Court, appear in person in the proceedings, or be legally represented, or be represented by an agent, and may examine and cross-examine witnesses on matters relevant to the proceedings. 101 Guardian ad litem and amicus curiae—parents of child or young person (1) The Children ’s Court may— (a) appoint a guardian ad litem for either or both of the parents of a child or young person, or (b) request the legal representative of a parent or the parents of a child or young person to act as amicus curiae, if it is of the opinion that the parent is, or the parents are, incapable of giving proper instructions to his or her, or their, legal representative. (2) Circumstances that warrant the appointment of a guardian ad litem or a request for a legal representative to act as amicus curiae may include that the parent of a child or young person has an intellectual disability or is mentally ill. (3) The functions of a guardian ad litem of a parent of a child or young person are— (a) to safeguard and represent the interests of the parent, and (b) to instruct the legal representative of the parent. (4) A legal representative of a parent for whom a guardian ad litem has been appointed is to act on the instructions of the guardian ad litem. 29 Guardian ad litem for parents of child or young person (1) An application for the appointment of a person to act as guardian ad litem for either or both of the parents of a child or young person under section 101 (1) of the Children and Young Persons (Care and Protection) Act 1998 may be made at the same time as an application in care proceedings is made in respect of the child or young person or at any time after that. (2) Such an application may be made by— (a) the person by whom the application in care proceedings was made, or (b) either or both of the parents of the child or young person, or (c) a person with parental responsibility, or care responsibility, for the child or young person (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ), or (d) a legal practitioner or agent appearing on behalf of either or both of the parents of the child, or (e) the proposed guardian ad litem. (3) Such an application must be supported by an affidavit setting out— (a) the relationship (if any) between the proposed guardian ad litem and the parent, and (b) the way in which the best interests of the welfare of the parent would be promoted by the appointment of the proposed guardian ad litem. (4) A copy of the order of appointment of a guardian ad litem for a parent of a child or young person (whether made by the Court on its own motion or on application made in accordance with this clause) must be served on each party to the proceedings before the next hearing of the proceedings takes place. ********** Amendments 28 August 2026 - Amendment to coversheet and grammatical edits. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2026