AMK v Commission for Children and Young People and Child Guardian [2011] QCAT 398

CITATION: AMK v Commission for Children and Young People and Child Guardian [2011] QCAT 398 PARTIES: AMK v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML002-11 MATTER TYPE: Childrens matters HEARING DATE: 16 & 17 May 2011 and 4 July 2011 HEARD AT: Rockhampton DECISION OF: Ron Joachim, Presiding Member Philippa Beckinsale, Member DELIVERED ON: 19 July 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The decision of the Commission for Children and Young People and Child Guardian of 1 December 2010 to cancel AMK’s Blue Card and issue her with a negative notice is confirmed. CATCHWORDS: Childrens Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to cancel a Blue Card and issue a negative notice – where applicant’s foster carer certificate was cancelled – where applicant lost appeal to Children Services Tribunal to regain certificate – where applicant does not have criminal history – where disciplinary information exists – where applicant shows no remorse or insight – whether applicant represents an unacceptable risk of harm to children – whether case is exceptional – whether protective factors outweigh risk factors Child Protection Act 1999, ss 9, 140A Commission for Children, Young People and Child Guardian Act 1999, ss 6, 155, 221, 228 Queensland Civil and Administrative Tribunal Act 2009, ss 19, 24 Kent v Wilson [2008] VSC 98 -- 1 of 11 -- 2 Re OAA [2006] QCST 142 APPEARANCES and REPRESENTATION (if any): APPLICANT: AMK represented herself RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Geoff Woodberry REASONS FOR DECISION Background [1] AMK is the applicant in these proceedings. She was issued with a positive notice and blue card under the Commission for Children and Young People and Child Guardian Act 2000 (the Act) on 12 February 2009. This allowed her to work with children. [2] AMK resides with her partner of one year. She has employment as an enrolled nurse in an aged care facility and is currently studying to be a nurse. [3] Following advice from the Department of Communities (Child Safety) that there was a change to disciplinary information held by that Department, the Commissioner reassessed her eligibility to hold a blue card. [4] In accordance with reasons dated 30 November 2010, the Commissioner cancelled AMK’s positive notice and blue card and issued a negative notice. [5] AMK seeks a review of this decision and applied to the Tribunal on 11 January 2011. [6] The application was substantially heard on 16 and 17 May 2011 and a further telephone and video link occurred on 4 July 2011. The relevant law [7] The Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commission’s decision. Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) outlines the options available to the Tribunal. These options are that the Tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. -- 2 of 11 -- 3 [8] The operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the CCYPCG Act. Section 19 of the QCAT Act provides: 19 Exercising review jurisdiction generally In exercising its review jurisdiction, the tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [9] Pursuant to section 140(A) of the Child Protection Act 1999, the Commissioner was notified of AMK’s disciplinary information. Under these circumstances where the applicant has not been convicted of an offence the Commissioner must issue a positive notice unless satisfied that AMK’s is an exceptional case in which it would not be in the best interests of children for her to have a blue card. If this is so then the Commissioner must issue a negative notice. The relevant provisions are outlined below:- Section 221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence (1) Subject to subsection (2), the commissioner must issue a positive notice to the person if— (a) the commissioner is not aware of any police information or disciplinary information about the person; or (b) the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person— (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note for subparagraph (iv)— For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices). (c) the commissioner is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person. It is this that the Tribunal must consider. [10] Section 228 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if AMK’s is an exceptional case. -- 3 of 11 -- 4 [11] The CCYPCG Act does not define what is an exceptional case. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case. [12] In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated: “Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning „unusual, special, out of the ordinary course‟. This does mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.” [13] The focus of the CCYPCG Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm. Harm is defined in this Act to have the same meaning given in section 9 of the Child Protection Act 1999. [14] The former Children Services Tribunal has previously endorsed principles from the family law jurisdiction relating to access and contact, as applicable to assessing applications for blue cards. [15] In the former Children Services Tribunal matter of OAA re (2006) QCST 142 the Tribunal stated at paragraph 41 of its Reasons: “The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunals‟ answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner‟s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.” -- 4 of 11 -- 5 [16] This Tribunal considers this an appropriate approach. In effect, as another part of its review of the Commissioner’s decision, this Tribunal needs to consider whether AMK represents an unacceptable risk to children, in determining whether hers is an exceptional case. [17] The Act in section 6 outlines principles for administering the CCYPCG Act. It is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that the Tribunal must apply. Section 155 further provides that: “the paramount consideration in making a decision relating to employment screening is a child‟s entitlement to be cared for in a way that protects the child from harm and promotes the child‟s wellbeing”. and the Tribunal must also take this into account in determining this application. [18] The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities. The undisputed relevant facts [19] AMK was a former foster carer whose foster care certificate was cancelled by the Department on 13 May 2005 because of substantiated harm and risk of harm to children in her care. This was appealed to the former Children Services Tribunal which confirmed the Department’s decision. [20] AMK strongly asserts she has been treated unfairly by the Department and has spent a considerable sum on legal expenses attempting to clear her name. [21] AMK has attempted to have the Queensland Police Service, the Crime and Misconduct Commission and the Commission for Children, Young People and Child Guardian investigate her claims without success. [22] Her written referees all attest to her ability to work well with children. [23] AMK has undertaken a range of courses to improve her knowledge over many years. [24] AMK has a strong desire to work with children. Other evidence [25] AMK advised the Tribunal that she had previously worked at a Special School and had enjoyed working there. She advised she wants to work with children. Her previous employment involved sales. [26] She advised she had looked after around 50 children over a 6 year period with a maximum of 5 at a time. -- 5 of 11 -- 6 [27] She now works for Blue Care doing residential aged care on shifts where she provides personal care to the residents. [28] She advised she has also worked in Corrections, with people with disabilities and as a volunteer with St John’s Ambulance at sporting events. [29] She further advised she has done a range of courses including counselling, day care, first aid, enrolled nursing, justice, and identifying and responding to young people at risk. [30] She rents a property with her partner. [31] She described herself as having an ongoing church involvement and a stable upbringing. [32] She says she is a social drinker and has had no involvement with the criminal justice system. [33] She admitted to making one of the young children in her care walk a kilometre to school and putting him in a cold bath fully clothed, (despite denying this latter behaviour in her written submissions). [34] In her defence, she argued she had a high work load, had asked for assistance that was not forthcoming and had asked for two children to be removed. [35] AMK advised that she failed to give the contact details of the man the Department wanted to question about an alleged sexual abuse of one of the girls in her care. Her reason was that she didn’t think the Department would treat him properly. [36] She advised she had doubts any of the children had been penetrated and didn’t think the Department followed proper procedures. [37] She advised the Tribunal that apart from lack of support from management, not much causes her stress. She deals with stress using time out and having a cup of coffee. She obtained support from her church friends following the children’s removal. [38] AMK advised the Tribunal through her lawyer’s written submission to the Commissioner that she rejected all the allegations made by the Department in relation to her standards of care, apart from one incident of smacking a boy. [39] Dr R was the children’s paediatrician at the time when AMK had their care. He gave evidence to the Tribunal that there were no signs of any physical neglect of the children. He confirmed that two of the girls showed signs of having been penetrated, but it was not possible to establish when. [40] MED, the Deputy Principal of a State Primary School gave evidence to the Tribunal in support of AMK. She had previously been Deputy Principal and -- 6 of 11 -- 7 Acting Principal at another State School in 2003 when AMK was a foster carer. [41] She advised as follows: ▪ She was not aware of the Department allegations; ▪ The children in AMK’s care were always punctual and there were no issues about the children’s clothing or food; ▪ One of the male children was challenging; ▪ She saw no evidence of behavioural issues with the female children; ▪ She observed AMK to behave appropriately towards the children and was always available to discuss any issues. [42] DS has known AMK from DS’s voluntary work caring for dogs. AMK looked after a dog for her and had visits to the house on a number of occasions. [43] She advised the Tribunal that she would visit AMK’s house for about 15 minutes once or twice per fortnight. [44] She advised she saw nothing of concern on her visits but only saw positive things. The children all seemed happy to her. [45] Dr K is a psychologist who assessed AMK In December 2004. The Tribunal had the benefit of his assessment report and he gave oral evidence to the Tribunal. He has since seen AMK on three other occasions for one hour. [46] His evidence was as follows: ▪ AMK is an average person with no significant psychiatric problems; ▪ He does not know the nature of the allegations in detail; ▪ On testing she did not display problems in any domain; ▪ He was not asked to assess AMK on her ability to protect children; ▪ He is not able to make judgments in respect of the allegations; ▪ AMK does not show any significant cognitive deficits that potentially hinder her in performing her duties as a carer. Submissions of the Commissioner [47] The Commissioner provided both oral and written submissions to the Tribunal arguing that AMK should not receive a blue card. [48] The Commissioner is also relying on the written submissions and reasons for decision. She submitted: ▪ The Tribunal’s function is to consider the best interests of children. ▪ The applicant has a lack of insight into the effect of her conduct on children. -- 7 of 11 -- 8 ▪ AMK has shown no remorse, focussing on the perceived wrongs of the Department of Communities (Child Safety Services) and her poor relationship with them. ▪ The effect of the decision on the applicant not to receive a blue card is immaterial as her expertise is secondary to the harm she may cause. ▪ The Tribunal should adopt the findings of the former Children Services Tribunal (CST) which failed to overturn a Departmental decision to refuse the applicant a foster carer certificate. The CST canvassed a range of issues relating to a breach of standards of care by AMK in respect of children in her care and confirmed the Department’s decision that she should not be given a foster carer’s certificate. ▪ Little weight should be given to the witnesses’ evidence as one had limited contact a long time ago and the other could provide little evidence about the applicant’s contact with children. ▪ The applicant is a genuinely decent lady who does good work in the community and who is able to care for children in many respects. Nevertheless because of her lack of insight children exposed to her are at an unacceptable risk of harm. ▪ The applicant has not demonstrated any significant change to her position since the CST decision. ▪ Courses completed by the applicant are of limited relevance to this review and none of the training has led to increased insight. ▪ The risk factors included: i) Her not accepting any information about harm to children that has not been independently verified e.g. sexual harm having been done to one of the children by an unknown person. ii) Her very limited remorse in that she accepts no real shortcomings about the care she provided to the children she had in foster care. iii) Her lack of insight into the potential harm that could befall children, regarding the impact of her actions on children or into the perception of the children about punishment they received. iv) Little guidance being provided to the children regarding sexualized behaviours. v) The applicant’s disciplinary information showing the Department substantiating an outcome of harm to children in the applicant’s home with concerns about the home environment, her personal conduct and her lack of understanding of the standards of care. ▪ The decision of the CST in refusing the applicant a foster carer’s certificate refers to a conflictual approach to the Department and only following guidelines if it suited her. AMK’s submissions [49] At the end of the hearing on 17 May, AMK advised the Tribunal she did not wish to make any submissions. At the end of the hearing on 4 July, she submitted as follows: -- 8 of 11 -- 9 ▪ The Department has discriminated against her; ▪ The police were the only people authorised to do an investigation; ▪ Her foster carer certificate was taken away because the Department had conducted its own investigation; ▪ The person who cancelled her certificate has never come to her home; ▪ She has been treated unfairly; ▪ The Children’s Commissioner had authority to investigate and failed to do so. The Tribunal’s view [50] The Tribunal considers that there are a number of protective and risk factors applying in this matter. Protective factors are those matters the Tribunal considers in AMK’s favour supporting her case to receive a positive notice and Blue Card. Risk factors are those matters not in her favour and harm her case to have the Commissioner’s decision set aside. Both positive and risk factors are set out below. Protective factors ▪ There has been a lengthy period of time since the last reported episode of harm. ▪ AMK has no history of psychological or psychiatric symptomatology. ▪ AMK is in a relationship. ▪ She is in employment. ▪ She is undertaking further education and is keen to increase her knowledge. ▪ AMK received favourable reports from the teaching staff with whom she had worked. ▪ AMK had a stable upbringing. Risk factors ▪ AMK shows a lack of insight and remorse in respect of the issues raised about her past care. ▪ She has received no counselling about her behaviours. ▪ She was in total denial that any sexualised behaviours occurred at her home between the children. ▪ The Department found evidence of substantiated harm caused by her as a foster carer. ▪ AMK lost her foster care certificate. Section 228 of the CCYPCG Act -- 9 of 11 -- 10 [51] At subsection 2, this section outlines the various matters the Tribunal must take into account in deciding if AMK’s is an exceptional case. [52] The Tribunal notes the evidence that the Child Safety Centre recorded and assessed a number of notifications about AMK’s care of children. [53] The Department recorded an outcome of substantiated harm and substantiated risk of harm. The events involved smacking a child, pulling a child out of a bed bunk by his leg and making a child have a cold bath fully clothed. [54] Following a further notification regarding sexual harm and concerns by the Department that AMK impeded the Department in its investigations, took retaliatory action against a child and that she failed to deal appropriately with a child’s disclosure, the Department cancelled her foster care certificate. [55] AMK subsequently appealed this decision to the former CST and the departmental decision was upheld. [56] The CST 2006 reasons for decision made it clear that the Tribunal was in no doubt whatsoever that the Department had made its case out fully. AMK did not appeal its decision. [57] This Tribunal will not look behind the CST decision. It must be accepted by this Tribunal as the correct decision that in 2006 AMK was not suitable to foster children because of her inability to act in the best interests of children as a foster carer. The Tribunal found she was “in serious and constant breach of the standard of care.” [58] The disciplinary information referred to above in respect of the removal of a foster carer certificate is clearly relevant to working or volunteering with children and is adverse to the applicant’s case. [59] In addition to the above matters the Tribunal is also aware that AMK put a young boy in her care out of her car on the way to school and made no effort to check his whereabouts. She assumed he walked to school. He did not do so. The Tribunal finds this behaviour unacceptable. [60] Despite being told by the Department that two girls in her care had been sexually penetrated, she refused to accept this could have happened. She wanted independent verification from a medical practitioner. It must be said that there is no evidence that AMK was responsible for the sexual penetration of the two girls in her care. It is the attitude she took to the notification and subsequent investigation that is of concern. [61] The Tribunal is very concerned that AMK fails to acknowledge any shortcomings in her care or her approach to caring. This lack of insight impacts severely on her prospects of success in this matter. [62] The Tribunal is unable to place great weight on the evidence of the witnesses who appeared because of their limited knowledge of AMK’s interaction with the children. -- 10 of 11 -- 11 [63] The Tribunal agrees with the Commissioner, in large part, about the courses undertaken by AMK not being directly relevant to her application. [64] The Tribunal places no importance on Dr K’s evidence, because it is of little relevance to its considerations. [65] The Tribunal has no doubt as to the genuine desire of AMK to work with children and her wish to help them. It may well be in a supervised environment such as a school setting she would do good works. The Blue Card, however, is totally transferable. No conditions can be placed on its use. [66] The Tribunal further considers that the risk factors outweigh the protective matters in this case and this weighs against the applicant. Conclusion [67] The Tribunal has formed the view that AMK’s case is an exceptional case in which it would not be in the best interests of children for her to have a positive notice. [68] The Tribunal considers she represents an unacceptable risk of harm to children in circumstances where she could work in an unfettered way with children because of the transferability of a Blue Card. It is issued without conditions. [69] The Tribunal confirms the decision for the commissioner of 1 December 2010 to cancel AMK’s Blue Card and to issue her with a negative notice. -- 11 of 11 --