CAS & CJC v Department of Communities (Child Safety Services) [2011] QCAT 350

CITATION: CAS & CJC v Department of Communities (Child Safety Services) [2011] QCAT 350 PARTIES: CAS CJC (Applicant/Appellant) V Department of Communities (Child Safety Services) (Respondent) APPLICATION NUMBER: CML095-11 MATTER TYPE: Children’s matters HEARING DATE: 21 July 2011 HEARD: On the papers DECISION OF: Ron Joachim, Presiding Member Dr Bridget Cullen Mandikos, Member Tammy Williams, Member DELIVERED ON: 21 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for a stay of the decision to remove TV from the care of CAS and CJC is refused. CATCHWORDS: Children matters – Child Protection – Review of decision of Department of Communities (Child Safety Services) to remove child from foster carers – where numerous matters of concern investigated – where Department finds substantiated emotional harm to children in applicants’ care and risk of emotional harm to subject child – where carers deny all allegations – where subject child wishes to return to foster carers – where Department proposes to suspend foster carer’s certificate – where best interests of child needs to be considered. Child Protection Act 1999 Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 section 22 -- 1 of 4 -- APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 23 May 2011, the Queensland Civil and Administrative Tribunal (QCAT) received an application from CAS and CJC seeking review of a decision by the Department of Communities (Child Safety Services)(“Department”) to remove TV from their care. [2] CAS and CJC were, at the time, foster carers for TV. As part of the application before QCAT, CAS and CJC also asked the Tribunal to stay the decision. In other words, CAS and CJC wanted TV returned to their care pending the hearing of the application. [3] The Tribunal is satisfied that the decision made by the Department to remove TV is a reviewable decision under the Child Protection Act 1999 (Qld). Schedule 2 of that Act lists the reviewable decisions. [4] Section 22 of the Queensland Civil and Administrative Tribunal Act 2009 outlines the circumstances under which the Tribunal may make an order staying the operation of a reviewable decision. The factors that the Tribunal must take into account in making a stay decision are: a) The interests of any person whose interests may be affected by the making of the order or the order not being made; b) Any submission made to the Tribunal by the decision maker for the reviewable decision; and c) The public interest. [5] The Tribunal conducted a compulsory conference and stay hearing on 6 June 2011. The hearing was adjourned with orders made that the Department provide a statement to both the Tribunal and the applicants by close on business on 17 June 2011, outlining the outcomes of an investigation into various matters of concern. [6] The Department was in the process of investigating a number of allegations about CAS and CJC’s care of children for whom they were caring. [7] The Department argued that it would be premature for the Tribunal to make a decision about the stay without having the benefit of the investigation report. The Tribunal accepted the Department’s argument. [8] At a further compulsory conference on 21 June 2011, the Department advised that since the hearing on 6 June further material had come to the Department’s attention which required further investigation and that the Department would require until 14 July 2011 to complete their investigation. [9] The Tribunal made orders that the Department provide a statement to the Tribunal and to CAS and CJC by close of business 14 July 2011 outlining the -- 2 of 4 -- outcomes of the investigation to the matters of concern. The parties were also directed to provide written submissions by 28 June 2011 on whether a stay should be granted. The Department, CAS and CJC and the subject child, TV, provided submissions to the Tribunal. [10] A decision to grant or refuse a stay must ensure that TV’s welfare is the paramount consideration. An element of this includes whether the frequency of changes relating to the child in respect of custodial arrangements should be limited as much as possible. The onus is on the applicant for a stay to prove that it is necessary for the stay to be granted. There must be some grounds for granting it. [11] In the Tribunal’s view, the applicant must also show that there is harm, prejudice or hardship to the interest they are seeking to protect that will occur should the stay not be granted. [12] The Department provided the Tribunal with a comprehensive statement of reasons for its decision to remove TV from CAS and CJC’s care pursuant to section 89 of the Child Protection Act. These reasons included a range of matters of concern that had been recorded in relation to CAS and CJC dating back to March 2000. The most recent issues were raised in April 2011, as well as in May 2011. [13] The issues raised through the process of investigation indicated concerns about household hygiene issues, inappropriate methods of support and communication, name calling and children being put down, not supporting children in their care to maintain biological family connections, children feeling that some of the children in care are favoured over others, inappropriate or excessive discipline, excessive drinking by household members, neglect of medical care and CAS and CJC encouraging children to lie to the Department about what is happening at their home. [14] The Tribunal also has the benefit of the final report into the matters of concern. The Department has substantiated emotional harm to two of the children in the care of CAS and CJC and has substantiated a risk of emotional harm to TV. The Department is concerned that a number of the standards of care have been breached by CAS and CJC. CAS and CJC have denied all of the allegations despite the multiple disclosures of various children and young people. [15] The Department has noted that the breaches are consistent with past allegations made in relation to CAS and CJC in their capacity as carers. [16] The Manager of the Caboolture Child Safety Service Centre in the latest report to the Tribunal, dated 14 July 2011, advises that she has made a decision to issue CAS and CJC with a letter proposing to suspend their letter of certificate of approval as foster carers. This letter was issued to CAS and CJC on the following day, 15 July 2011. [17] The Tribunal also has submissions from CAS and CJC in which they deny the allegations made against them as carers. They have provided the Tribunal -- 3 of 4 -- with statements from a range of persons supporting their care of the children. In particular, they have provided statements from former foster children, friends of the family, a medical practitioner, and their own child. All of these statements, many of which are by statutory declaration, have supported CAS and CJC’s level of care. [18] TV provided a submission to the Tribunal requesting that she be allowed to return to CAS and CJC as soon as possible. She submitted that she has lived with CAS and CJC for almost 5 years and has not seen anything that could have caused “everything that has happened in the last term”. She advised the Tribunal that she has experienced joy, love, excitement, happiness and more, and she always considered herself part of the CAS and CJC’s family. She submitted that she liked living in the area and wished to return there. She also referred to her schooling, which has deteriorated since her move from the area. [19] In the face of the serious allegations made by the Department, and with the possibility that CAS and CJC will not be authorised to be foster carers, the Tribunal considers it should not grant the stay. [20] Whilst the evidence from both sides is currently untested, the Tribunal is concerned that there are serious allegations on foot - not all of which have been addressed by CAS and CJC in their submissions. [21] The Tribunal does not consider that it is in TV’s best interest to be returned to an environment considered by the Department to be unsatisfactory for foster care and also takes into account the Department’s decision to issue CAS and CJC with a decision proposing to suspend their approval as foster carers. It is not in TV’s best interests to move back to CAS and CJC who may soon lose their ability to foster children. This would mean that TV would need to move yet again. [22] In all the circumstances, the Tribunal will not grant the stay. -- 4 of 4 --