BA v Department of Children, Youth Justice and Multicultural Affairs & Anor [2022] QChC 21

[2022] QChC 21 CHILDRENS COURT OF QUEENSLAND LOURY KC DCJ DC No 6/22 BA Appellant v DEPARTMENT OF CHILDREN, YOUTH JUSTICE Respondent AND MULTICULTURAL AFFAIRS and WMJ Second Respondent KINGAROY FRIDAY, 7 OCTOBER 2022 JUDGMENT [1] LOURY KC DCJ: A temporary assessment order (“TAO”) under the Child Protection Act 1999 (Qld) (“CPA”) was made in relation to the appellant’s child at approximately 9 pm on 28 September 2022 by a Magistrate. It ordered: a. The child may be medically examined or treated; b. An authorised officer or police officer be authorised to take the child into and keep the child in the chief executive’s custody whilst this order is in force; c. Directing [the appellant] not to have contact (direct or indirect) with the child other than when a departmentally approved person is present. [2] The application was decided without notification to the appellant (the mother of the child) and without hearing from her. The appellant appeals against the making of -- 1 of 8 -- 2 the TAO. The appellant argues that the learned Magistrate erred in making the order as: 1. Reasonable steps were not taken to obtain parental consent to the order 2. Sufficient proposed arrangements had not been made for the child 3. The magistrate ought not to have been satisfied that an investigation was necessary. [3] Section 117 of the CPA gives the appellant (as a parent of the child) the right to appeal a decision on an application for a TAO. Such appeals are considered to be by way of rehearing.1 In order to succeed the appellant needs to demonstrate that having regard to the evidence now before this court, that the order that is the subject of the appeal is the result of some legal, factual or discretionary error. [4] Pursuant to section 120(1) this court is not restricted to the material before the learned Magistrate. In that regard the appellant has filed an affidavit sworn 4 October 2022. I have received as exhibits an intake form which details the notification which was received by the Department of Children, Youth Justice and Multicultural Affairs (“the Department”), the medical notes made by various medical professionals of a visit by the child on 21 September 2022 to a medical practice, and the medical records of the child’s treatment at the local hospital on the evening on 28 September 2022. [5] The appellant seeks an order that the TAO be set aside. The purpose of a TAO is to authorise actions necessary as part of an investigation to assess whether a child is a child in need of protection, if the consent of the parent of the child to the actions has not been able to be obtained or it is not practicable to take steps to obtain the parent’s consent.2 [6] Section 25 of the CPA sets out the procedures to be undertaken in making such an application. The application must be written and sworn and must state the grounds on which it is made, the nature of the order sought and the proposed arrangements for the child’s care if the child is being taken into the Chief Executive’s care. 1 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16. 2 Child Protection Act 1999 (Qld) s 24(2). -- 2 of 8 -- 3 [7] Section 26 of the CPA provides that the Magistrate may decide the application without notifying the child’s parents or hearing from them on the application. [8] Section 27 provides that the Magistrate can make a TAO only if satisfied that: (a) An investigation is necessary to assess whether the child is a child in need of protection; and (b) The investigation cannot properly be carried out unless the order is made. [9] Under the legislation the Magistrate must also be satisfied that reasonable steps have been taken to obtain appropriate parental consent to do all things authorised, or that it is not practicable to take steps to obtain the consent.3 [10] A TAO must not be for more than 3 business days after the order is made.4 The application can be made by phone, fax, radio or other form of communication. If there is a reasonably practicable way of immediately giving a copy of the order to the applicant (for example by sending a copy by fax) the Magistrate must immediately give a copy of the order to the applicant.5 [11] The Notice of Appeal was filed in the Kingaroy District Court on 30 September 2022, at a time when the court was not sitting. I have attempted to deal with the matter with some urgency given that the TAO resulted in the child being removed from her mother’s care, and given that its duration was only for three days. That three days has now passed. As a result of the father having not been served with the Notice of Appeal and a further delay occasioned by the time in which it took for the provision of the material by the Department that formed the basis of the application, it has now been eight days since the order was made. That has necessarily meant that the order has expired as at the time of delivery of these reasons. [12] The material before me, in addition to the material I’ve already mentioned, is the amended Notice of Appeal, the order made by the learned Magistrate and the sworn application for the TAO. The second respondent (the father of the child) appeared by telephone yesterday, indicating he intended to make submissions. He has chosen not to appear today, so I have not heard from him. 3 Ibid s 27(2). 4 Ibid s 29(1). 5 Ibid s 30(1). -- 3 of 8 -- 4 [13] Section 27 of the CPA requires a Magistrate to be satisfied an investigation is necessary to assess whether a child is a child in need of protection. He/she considers that application based upon a written application, sworn by the applicant. The application before the learned Magistrate clearly sets out what the concerns held by the applicant were; that the child has been sexually abused whilst in the care of the appellant. [14] The appellant’s substantive argument is effectively that there was insufficient evidence before the learned Magistrate to be satisfied that an investigation was necessary to assess whether the child is a child in need of protection, and additionally that the Magistrate erred because the material upon which he based his decision is not, in fact, correct. [15] It is uncontentious that the appellant took her four year old daughter to see a doctor on 21 September 2022 for treatment for a sore vagina. The medical records made by the doctor note that the child was looking well; the physical examination was unremarkable; and that there were no signs of physical abuse. A genital swab was taken from the child. The notation of the registered nurse indicates that the child had come in “last week with abdominal pain”, and on examination had said “my noo- noo is sore”, which was a reference to her vagina. When asked how that happened, she turned her head away and said “I think I am not wiping myself properly”. The nurse noticed a greenish substance on the left labia majora. She took a swab and it seems there was a urine test undertaken as well. There was then a request made for some testing to be undertaken for sexually transmitted diseases. I have seen the results of those tests. They have been exhibited to the affidavit of the appellant. The testing for sexually transmitted diseases returned negative results. The testing of the genital swab revealed a moderate number of gram-positive cocci, which is a bacteria. The note made by the doctor having viewed the swab microscopy on 29 September 2022 (when the appellant attended upon him distressed about the removal of her child by the Department) states that the result was considered “normal commensal” which I infer is a reference to the normal levels of bacteria found in a healthy person. He noted that no pathogen was isolated. The testing for sexually transmitted diseases also returned negative results. -- 4 of 8 -- 5 [16] The sworn application which was filed in support of the TAO includes the following details. 7. At 3:30 pm on 28 September 2022, a notifier contacted the South West Regional Intake Service and provided the following information, which was recorded as a Notification: a. The mother presented with the child to [a medical practice] on the 21/09/2022. b. [the child] stated “my noo noo is sore” which is her description of her vagina. c. [the child] added “I think I’m not wiping myself properly.” This was perceived as an unusual thing for a 4 year-old to say. d. Greenish discharge or substance was observed coming out of [the child’s] vagina. A swab was taken. It was negative for STDs. A dip stick of [the child’s] urine was taken and it came back negative for drugs. e. The swab came back positive for Cocci – classed as being an infection caused by pelvic inflammatory disease. This disease is caused through sexual contact. f. [the child’s] physical examination revealed that the vagina appeared normal which indicates that the sexual contact was digital penetration. g. It is also believed that [the child] has been digitally raped because the infection is so high up in the vagina. h. [the child] said that her bellybutton hurt from the inside i. [the child] said that a man named [X] visits the home and they eat brownies and she doesn’t like it. [The child] stated that [X] touches her bellybutton from the inside. j. Doesn’t like the brownies, makes her feel sick and sleepy. k. The mother wanted a letter from the medical clinic which stated that [the child’s] infection was caused by the multiple detergents she uses to clean [the child’s] clothes. [17] The intake form which sets out the details of the notification made to the Department at 3.30pm indicates that the notifiers were from the medical practice -- 5 of 8 -- 6 where the child had been taken on 21 September. There were two notifiers who together provided the details set out in paragraph [16] of the judgment. The medical records however, which are contemporaneous notes taken by the medical professionals who saw and treated the child on 21 September (who were not the notifiers), do not support some of the statements that were made in that notification. Importantly, the reference to the statement by the child “I think I’m not wiping myself properly” as being something unusual, is not something reported by the doctor or the nurse to whom the child spoke. [18] The medical notes also do not reveal that the doctor was at all concerned that the positive cocci result was caused by pelvic inflammatory disease caused through sexual contact. The medical notes do not reveal that the doctor’s impression or opinion was that there had been sexual contact by way of digital penetration, nor do the records reveal that the child had been digitally raped because the infection was so high up in the vagina. The records also do not indicate that the child said that her bellybutton hurt from the inside or that [X] visited the home and ate brownies and touched her bellybutton from the inside. [19] The details as set out in the application for the TAO, which is what the learned Magistrate had before him, do to my mind give rise to a concern that the child had been sexually abused. In particular, the statements of the child that [X] touched her bellybutton from the inside, coupled with the presence of a bacterial infection in her vagina, demonstrated at least, at that time, that an investigation was necessary to determine whether she had been sexually abused and whether she was a child in need of protection. [20] However, what has been revealed now by the material before me, is that there were no concerns held by the medical practitioner or nurse who saw the child that she had been digitally penetrated or raped; and, there was no concern that she had an infection high up in her vagina or indeed any infection. There is no foundation in the contemporaneous medical records for the notification that the child expressed that someone was touching her bellybutton from the inside. [21] It is unsurprising, on the basis of the material before the learned Magistrate, that he considered that an investigation was necessary in order to determine whether the child was a child in need of protection. As indicated though, what has become -- 6 of 8 -- 7 apparent in the eight days since the child was removed from the care of the appellant is that records received by the Department from the hospital, where the child was taken on the evening of 28 September 2022 by the appellant, also do not detail any concerns as to the sexual abuse of the child. The hospital records reveal that there was a genital examination undertaken; that there was no obvious discharge; and no other significant findings. It appears that there was no treatment provided. [22] Further, the order that the Department sought was an order that the child “may be medically examined or treated”. Since the child was taken by the Department the child has not been independently medically examined or treated. That is so in circumstances where the application stated that “[t]he following tasks will be completed as part of the investigation: ….obtain independent medical assessment of [the child]”. [23] The child was interviewed by police on 28 September 2022. She did not answer any questions, so there is no evidence from the child herself that a man named [X] tickled her bellybutton from the inside. The child was asked, it seems, if she had been told not to talk about things with police, and she indicated that the appellant had told her not to. That was a feature which no doubt also gave rise to concerns in the learned Magistrate that the child was one for whom an investigation was needed and that it was not practicable for that to occur with the consent of the appellant. [24] However, on the basis of all of the evidence before me now, the material does not at all satisfy me that the child is a child for whom there needs to be an investigation to establish whether she is a child in need of protection. It is noteworthy that on the very day that the TAO was granted and the child was removed from the appellant’s care, there had been an interim hearing before a learned Magistrate, (whom I infer might have had some familiarity with the matter) where he declined to make an order placing the child in the interim custody of the Chief Executive. His order indicates that the Department were unable to satisfy him on that day, that there was an unacceptable risk of harm to the child. [25] Whilst I can understand the reasons why, based on the application, the learned Magistrate made the order that he made, on the basis of all the material before me, I am not satisfied that the investigation that the Department wanted to undertake was -- 7 of 8 -- 8 necessary to assess whether the child was a child in need of protection or that it could not be properly carried out unless the order for the TAO was made. [26] Accordingly, I allow the appeal. I set aside the temporary assessment order. -- 8 of 8 --