CEB v Director-General, Department of Justice and Attorney-General [2018] QCAT 26

CITATION: CEB v Director-General, Department of Justice and Attorney-General [2018] QCAT 26 PARTIES: CEB (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML110-17 MATTER TYPE: Childrens matters HEARING DATE: 22 January 2018 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 31 January 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Director-General, Department of Justice and Attorney- General on 29 March 2017 to issue CEB a negative notice is confirmed. 2. The Tribunal prohibits the publication of any information in these proceedings that could identify the applicant or children in any way. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – whether exceptional case – whether or not in best interests of children to issue positive notice FAMILY LAW AND CHILD WELFARE – CHILD -- 1 of 12 -- 2 WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – protective factors – where protective factors included working with community organisations, attending training and counselling and strong support network – where applicant had positive character references – where no child-related offences FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – risk factors – where applicant did not make enquiries about family member convicted of child-related sex offences – where applicant allowed children in her care to come into regular contact with family member convicted of child-related sex offences – where applicant failed to act with sufficient responsibility to keep own immediate environment safe – where applicant did not act protectively – where applicant sought to transfer responsibility and showed limited insight into risks – where separate risk factors relating to another foster child in applicant’s care including not providing telephone number to child’s mother to enable contact, inappropriate use of social media, and failing to provide appropriate emotional support – where these risk factors showed an inability by applicant in certain circumstances to place a child’s interests above her own FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – exceptional case – where children in care particularly susceptible – where standard of care therefore higher – where applicant did not heed warning signs of cousin’s behaviour and failed to act protectively towards granddaughter – where failure to appreciate seriousness of situation and attempts to transfer responsibility are directly related to child-related employment – where hindering proper contact, inappropriate use of social media and not providing emotional support showed applicant still not learnt to place child’s interests ahead of own personal views and feelings – where failure to appreciate risk of immediate environment and -- 2 of 12 -- 3 placing own views and feelings above children in care is contrary to responsibilities placed on those whom community trusts with paramount responsibility to protect children – where risk factors outweigh protective factors Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 156, s 221, s 226, s 360, Schedule 1 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, followed Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2, considered HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, applied Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, considered Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, considered Re TAA [2006] QCST 11, considered APPEARANCES and REPRESENTATION: APPLICANT: CEB appeared in person RESPONDENT: Ms Ainsley Skipper, Solicitor, appeared for the Director-General, Department of Justice and Attorney-General REASONS FOR DECISION What is this Application about? [1] Those entrusted with the care of children must be attuned to potential risks to their safety. This means careful monitoring of those with whom they associate. [2] CEB is a foster carer who had been entrusted with the care of her granddaughter and another child. However, when CEB’s positive notice for a ‘Blue Card’ allowing her to work with children came up for renewal, the Director-General, Department of Justice and Attorney-General instead -- 3 of 12 -- 4 issued her with a ‘negative notice’, meaning she is not permitted to work with children.1 [3] The Director-General’s concerns focussed on CEB allowing her granddaughter to associate with a nearby cousin who is convicted of child-related sex offences and who had committed an offence against CEB’s granddaughter while in her care. [4] CEB wants the Tribunal to review the Director-General’s decision. CEB is not required to show any error by the Director-General: the Tribunal’s role is to produce the correct and preferable decision by way of a fresh hearing on the merits.2 [5] Because CEB is not convicted of any ‘serious offence’, she is entitled to be issued with a positive notice for a Blue Card unless her case is ‘exceptional’.3 [6] In reviewing the Chief Executive’s decision that CEB’s case is ‘exceptional’, the issue for me to decide is whether it would not be in the best interests of children to issue a positive notice for CEB.4 To determine this, I must identify and balance protective factors with risk factors.5 Is it not in the best interests of children to issue a positive to CEB? [7] Because a positive notice authorises a person to work with children in any environment, the welfare and best interests of a child are paramount in deciding whether to issue a positive notice to CEB.6 [8] Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.7 What protective factors favour issuing a positive notice to CEB? [9] CEB is a lady who clearly has a close relationship with her granddaughter. She only has one minor criminal conviction from over 10 years ago for which she received a $500 fine. CEB has never been convicted of any offences related to children or in the presence of children. [10] Despite a difficult childhood with an overbearing and abusive father and a similarly abusive marriage, she became a loving mother and grandmother and maintained a career as a nurse. She lives with her son and until recently, committed herself to volunteer work with various community organisations and being a foster carer. 1 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156, Schedule 1. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 3 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226. 4 Ibid, s 221. 5 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 6 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360. 7 Ibid, s 6(b). -- 4 of 12 -- 5 [11] CEB moved away from her cousin when Child Safety became involved because of his past illicit behaviour towards children. She has attended training and counselling in 20138 and 20179 to increase her awareness of risks of sexual abuse towards children and to gain knowledge of protective behaviours to keep children safe. [12] PYR, Counsellor, provided the most recent counselling and gave oral evidence that CEB was dedicated, showed interest and did really well in her counselling sessions. PYR said that CEB is now more aware of what to look out for and what can happen. [13] CEB also provided written character references10 attesting to her being a caring and supporting person, who provides a positive home environment and presents a positive role model for children. [14] Unfortunately, only one referee, CXC, attended the hearing to give evidence and confirmed she was aware of the reasons for the Director- General issuing CEB with a negative notice. None of the other referees referred to having seen the Director-General’s Statement of Reasons.11 [15] This means the weight to be attached to the remaining references must be reduced because the referees did not attend the hearing and were not available for cross-examination.12 [16] Nevertheless, all expressed confidence in CEB’s ability to work with children and none had any concerns about her interactions with children. In particular, CXC described CEB as loving, caring, knowledgeable and supportive, with the greatest respect for children and their needs and wellbeing. [17] CEB also provided a report from her psychologist, WXK, who has been treating her granddaughter since 25 October 2016 and who has been treating CEB for the past three months.13 WXK gave evidence by telephone and believes that CEB now has “total insight” from her courses and now knows that she should investigate anyone who comes into contact with a child and will protect a child “as much as any parent can”. 8 Report of EQG dated 30 August 2013. 9 Report of PYR dated 7 November 2017. 10 Letter from WVL to Whom It May Concern, undated; Reference of HNL dated 6 November 2016; Reference of HQA undated; Reference of HLK dated 8 November 2016; Reference of RLR dated 8 November 2016; Reference of RYP dated 5 November 2016; Reference of WPD dated 6 November 2016; Reference of CCE dated 7 November 2016, Reference of CXC dated 7 November 2016; Reference of BHM 8 November 2016; Reference of MGJ undated. 11 Reasons for the decision to issue a negative notice dated 26 March 2017. 12 Statutory Declaration of GQS sworn 9 May 2014 and email dated 28 July 2016; Reference of KJJ dated 15 September 2016; Reference of HYM dated 17 September 2015. 13 Report of WXK, Psychologist dated 20 December 2017. -- 5 of 12 -- 6 [18] I am satisfied that the above evidence shows that CEB is a generally kind and caring person who cares deeply for her granddaughter, with a strong support network of family, friends and professionals. What risk factors prevent issuing a positive notice to CEB? What are the key risk factors? [19] The key concerns are CEB allowing children in her care to come into regular contact with her cousin who had been convicted of child-related sex offences and her limited insight into the risks that presents. [20] CEB said that when she first moved into the area, although she was aware her cousin had been in jail, she was not aware that he had been convicted of child-related sex offences. She claims that she would not have had any contact with her cousin had she known. Her witnesses, WXK and CXC, also believed CEB would have protected her granddaughter had she known why her cousin had been in jail. [21] However, as early as 2005 CEB said that her grandmother told her that her cousin had been in jail but that she “did not question her further about this”.14 In 2009, CEB said that Child Safety informed her that her cousin “was not a good person to be around”15 and told her to look him up. A police detective had also told CEB that her cousin had been in jail and that the detective had set up a “safety plan” for her granddaughter when she became 12 years old.16 [22] Despite these portents, CEB made no further enquiries and her granddaughter and foster child moved into a rural property of 40 acres next to her cousin in 2012 (when her granddaughter was 11 years old). CEB’s own evidence suggests government agencies held significant safety concerns for the children on her property at that time: The son of the relative… had been convicted in the past of criminal offences. In regard to this Detective [XX] (Child Protection Unit - Qld Police Service) discussed with me [the cousin’s] criminal record and he notified [XX] Child Safety of the situation… Detective [XX] compiled and instigated Protection Plans (re safety and boundary procedures) and he spoke to all parties concerned. Detective [XX] was responsible for ongoing monitoring of these plans and at no time considered there was a threat to [granddaughter]. Department of Corrections (Parole Board) also notified Child Safety of the situation and was aware of the Protection Plans and communication between myself and [cousin] at the time. … 14 Statement of CEB dated 12 June 2017, [44]. 15 Ibid, [58]. 16 Statement of CEB dated 2 January 2018, 2. -- 6 of 12 -- 7 I moved into the property and Dept. of Child Safety in particular our case worker… was fully aware of the situation and the proximity of our neighbours.17 [23] Despite these ‘red alerts’, CEB still allowed her cousin to visit and perform small jobs around the property. In June 2013 - eight months after CEB moved in - Child Safety interviewed her about what she knew of her cousin’s past, his criminal history, how often he visited, whether he had time alone with her granddaughter, whether he had been in her bedroom and whether she visited his house alone. [24] Later that day, Child Safety informed CEB that her granddaughter and foster child would be placed in overnight care and that CEB would need to move to have her granddaughter returned to her care. Child Safety also informed her that she would need to undertake a series of courses to clarify the extent of her involvement in the grooming of her granddaughter by a child sex offender. [25] Shortly after this, CEB moved away, ceased all contact with her cousin and ultimately resumed her role as foster carer for her granddaughter in November 2013. Unfortunately, by then it was too late. [26] In February 2014, police searched the cousin’s home and discovered video footage of CEB’s granddaughter showering and changing in the bathroom. The footage was taken in February 2013 - while CEB’s granddaughter was in her care - by a small camera installed by the cousin. The cousin was ultimately convicted and sentenced in February 2015. [27] The Tribunal is satisfied that the evidence shows that CEB was aware, or at least should reasonably have been aware, or have made reasonable enquiries about, the risks presented by her cousin before moving and while living next to him. [28] CEB claims that no-one told her of the full extent of her cousin’s past. She said she did not think to ask why her cousin had been in jail as she minds her own business. However, as carer for a child with care who had already been through considerable upheaval and trauma, it was CEB’s responsibility to make proper enquiries. [29] The Tribunal is satisfied that CEB had enough information since at least 2009 to cause her serious reservations about contact with her cousin and to make further enquiries. These enquiries could have included CEB confronting other family members and her cousin and directly searching the sex offenders register. [30] No fewer than three members of her family, including her mother and aunt, visited her cousin in jail every month. They had to know. CEB claims to have searched on her computer, but was unable to locate anything about her cousin - despite the sex offenders register being on-line. If 17 Letter of CEB dated 18 October 2013. -- 7 of 12 -- 8 CEB’s enquiries were unsuccessful, the prudent course would have been to err on the side of caution and prohibit contact between her granddaughter and cousin. [31] CEB had enough information about her cousin since at least 2009 for her to be concerned that he was a risk. Prudence dictated to stay away. Instead, she placed her feeling about the situation above evidence or at least strong indicators of a risk (she at least knew that her cousin had been in jail and that agencies had concerns) and moved nearby – without informing Child Safety of her cousin’s proximity. She then allowed a relationship to develop between the cousin and her granddaughter, which led to harm to her granddaughter. By going with her sense of the situation instead of the evidence, CEB did not act protectively. [32] Of further concern is CEB’s limited insight into the dangers posed by her cousin. CEB had been unable to identify her cousin’s grooming behaviour directed towards her granddaughter. Child Safety records also indicate that CEB had expressed the view that because her cousin had served his sentence, he was no longer a risk to children and that the assault that led to his earlier jail term “wasn’t that bad”. This lack of insight minimised the behaviour and exposed her granddaughter to risk. [33] CEB did complete a course by August 2013 to develop insight and increase awareness of risks for vulnerable children in her care. However, although the report shows improvement, it also suggests the need for change at the more deeper level of CEB’s own personal beliefs: It is considered through engagement in these sessions CEB gained an increased appreciation of the seriousness of sexual offending behaviour and the impact upon survivors. One of the most challenging psychological barriers to change is our beliefs. Many myths around sexual harm are pervasive and tough to change throughout our society. CEB has been given the skills and education to support such a change the rest is up to her.18 [34] It would appear that CEB did not undertake any further courses or counselling until late 2017. Although she is reported to have done well, CEB’s recent statements filed with the Tribunal19 - including those she filed after her most recent counselling20 - still focussed on minimising the extent of her knowledge and attempt to attribute responsibility to agencies for not fully informing her of her cousin’s history.21 This is despite contemporaneous records showing that when her cousin’s criminal history was discussed, CEB did not view him as a risk of reoffending. 18 Report of EQG dated 30 August 2013, 5. 19 Statements of CEB dated 9 March 2017, 12 June 2017 and 2 January 2018. 20 Statement of CEB dated 2 January 2018. 21 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, 7 [58]. -- 8 of 12 -- 9 [35] It was CEB’s responsibility to make appropriate enquiries and provide a safe environment for her granddaughter. She cannot transfer that responsibility to agencies. Are there other risk factors? [36] Since the above concerns, as recently as 2017, Child Safety records also show other risk factors for CEB relating to an eight-year-old foster child who had been in her care: a) Not willing to provide her telephone number to the child’s mother to enable telephone contact on days the child had no visits with her mother; b) Voicing her disapproval on social media of the child’s reunification with her mother, thereby inadvertently publicly identifying a child in care; and c) Not providing emotional support to the child when she returned from visits and not facilitating a positive transition when the placement ended. [37] When the Tribunal asked CEB about her engagement with the child when the placement ended, CEB said that she felt that by asking her about the child’s belongings, Child Safety was accusing her of stealing and that when she is upset she does not want to talk to anyone. [38] The Tribunal also notes that much of the child’s placement with CEB had been positive, at least initially, and it was not until later that these risk factors became evident. This was around the time that CEB had some health concerns and was understandably concerned about her granddaughter’s placement with her. [39] However, a person working with children cannot allow their own interests to transcend those of a child for whom they care. The child’s interests are paramount.22 CEB cannot place her own feelings above those of any child in her care. [40] Hindering contact with the child’s mother, publicly expressing views about the child’s reunification and not being ‘emotionally there’ can be very hurtful and traumatising for a child – and her family and friends. A carer cannot and should not presume to know everything about a child’s placement or needs. [41] When viewed together, these factors show an inability by CEB in certain circumstances to place a child’s interests above her own. 22 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360. -- 9 of 12 -- 10 Is this an ‘exceptional case’ to not issue a positive notice to CEB? [42] The Tribunal accepts that CEB cares deeply for her granddaughter and did not intend to expose her to a risk of harm. Rather, it would appear that CEB has been the main source of love and care for her granddaughter for many years. CEB’s actions in exposing her granddaughter to a significant risk of harm appear to have been borne of ignorance rather than wilful neglect. [43] However, because of their particular susceptibility, it is too easy to cause harm to children in care - even without intent. Although her psychologist gave evidence that CEB would protect a child “as much as any parent can”, this is not sufficient for a child in care. [44] This is because as a child in care, CEB’s granddaughter was already vulnerable and had been through considerable trauma. She was a ready target for grooming and other predatory behaviour. The standard of care expected of CEB was therefore higher than that of “any parent”. [45] Unfortunately, by not heeding the warning signs of her cousin’s behaviour, CEB failed to act protectively towards her granddaughter. A person working with children must be vigilant and attuned to their immediate surrounds. Children must be protected from potentially hazardous environments, situations and people. [46] The evidence is that CEB, at the very least, was sufficiently ignorant of her surrounds and the real and immediate threat posed by her cousin. Unfortunately, this led to the commission of an offence relating to a child while in her care and Child Safety having to remove children from her care. [47] Children depend on adults to have insight into their actions and their likely effect.23 CEB has developed some insight into the risks. During the hearing, she showed an awareness of the propensity for child sex offenders to re-offend. However, in her recent statements filed with the Tribunal, CEB also minimised the reasons for her granddaughter not being in her care and sought to transfer responsibility, by focusing on what she considered to be ‘heavy-handed’ intervention by Child Safety and the alleged treatment of her granddaughter while not in her care.24 [48] A person’s actions take on greater magnitude when viewed in the context of protecting children. CEB’s are not the actions of a person required to act sufficiently responsible to provide a safe and protective environment for children – especially those in care. CEB’s failure to appreciate the seriousness of the situation and her recent attempts to minimise her 23 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56, 7 [49], citing with approval Re TAA [2006] QCST 11. 24 Statements of CEB dated 9 March 2017, 12 June 2017 and 2 January 2018. -- 10 of 12 -- 11 involvement and transfer responsibility to government agencies are directly relevant to child-related employment.25 [49] As recently as 2017, CEB also hindered proper contact, inappropriately used social media and failed to provide appropriate emotional support for another child in her care. This shows that CEB had still not fully learnt the lessons from the placement of her granddaughter – to place the child’s interests ahead of her own personal views and feelings. [50] It is unfortunate that not having a positive notice for a Blue Card will affect CEB’s ability to continue her undoubted good work for many worthy community organisations. However, any detriment to CEB is not relevant to the granting of a positive notice26 – the paramount consideration is the welfare and best interests of children.27 [51] Unfortunately for CEB, in considering the welfare and best interests of children, the risk factors outweigh the protective factors. CEB’s case is exceptional because she did not act protectively and appreciate the risk presented by her immediate environment and placed her own views and feelings above those of children in her care. This is contrary to the responsibilities placed on those whom the community reposes its trust with the paramount responsibility to protect children. [52] CEB needs to take responsibility for her actions so the community can be satisfied that she can again be trusted to work with children. She needs time to develop more insight into the need to act protectively for children at all times and the need to place their interests above her own feelings, even – and especially - when dealing with her own issues in life. [53] Issuing CEB with a positive notice at this time is not in the best interests of children. Non-publication order [54] The Tribunal previously ordered that publication of any information that could identify the applicant or any relevant children is prohibited until further order.28 The Tribunal considers that it is in the interests of children related to these proceedings and in the interests of justice that an order is made to prohibit the publication of any information in these proceedings that could identify the applicant or children in any way.29 This order extends to material on the Tribunal file and the names of the applicant and family members. Neither party objected to this. 25 HIC v Commissioner for Children and Young People and Child Guardian [2013] QCAT 403, 8 [65]. 26 Pritchard v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 25, 9 [47]-[48]; Grealy v Director-General, Department of Justice and Attorney-General [2018] QCAT 2, 8 [29]. 27 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s 360. 28 Direction 6 dated 8 November 2017. 29 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66. -- 11 of 12 -- 12 [55] Accordingly, these reasons are published in a de-identified format. Conclusion [56] Because her case is ‘exceptional’, the correct and preferable decision is to confirm the decision of the Director-General, Department of Justice and Attorney-General on 29 March 2017 to issue CEB a negative notice. -- 12 of 12 --