Keeping children out of custody wherever possible – the Supreme Court of Victoria overturns decision to refuse bail to 15-year-old child
HA (a pseudonym) v The Queen S EAPCR 2021 0019 (19 March 2021)
The Victorian Supreme Court overturned a decision to refuse bail to a 15 year old child. In deciding to grant a child bail, Justice Maxwell and Justice Kaye were guided by the “fundamental principle” of the youth legal system to “keep children out of custody wherever possible.” Their Honours also raised the “unacceptable” rate of over-representation of Aboriginal and Torres Strait Islander people in the criminal legal system and considered that the “courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates.”
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High Court judgment finds young people were unlawfully tear gassed in Don Dale and that they are entitled to damages
Binsaris v Northern Territory of Australia [2020] HCA 22
On 3 June 2020, the majority of the High Court found that prison officers’ use of tear gas on four Aboriginal children in Don Dale Youth Detention Centre was unlawful. The High Court unanimously held that each of the four young people were entitled to damages for the harm they suffered.
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Local authorities could owe a duty of care to children needing care, UK Supreme Court holds
Poole Borough Council v GN and another [2019] UKSC 25
The UK Supreme Court (the Court) examined whether the local authority had failed to fulfil a common law duty to protect two children, Colin and Graham, from harm inflicted by their neighbours. Drawing on the facts of the case, the Court held that the council was not liable for negligently failing to exercise its social services functions as there was no recognisable basis for a cause of action. While the Court dismissed the appeal, the decision in Poole leaves open the possibility for a duty of care to exist where an assumption of responsibility can be established.
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