DA v Chief Executive of the Department of Families [2005] QDC 14

DISTRICT COURT OF QUEENSLAND CITATION: DA v Chief Executive of the Department of Families [2005] QDC 014 PARTIES: DA appellant v CHIEF EXECUTIVE OF THE DEPARTMENT OF FAMILIES respondent FILE NO/S: BD1560 of 2004 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 11 February 2005 DELIVERED AT: Brisbane HEARING DATE: 13 January 2005 JUDGE: Samios DCJ ORDER: Decision of Child Care Tribunal dated 2 April 2004 set aside. Prohibition notice dated 30 October 2003 set aside. CATCHWORDS: APPEAL AND NEW TRIAL – INFANTS AND CHILDREN – Care and protection – Child Care Act 2002 s 8(1), s 103, Child Protection Act 1999 s 9(1), Children Services Tribunal Act 2000 s 4, s 33, s 38(1), s 51(2), s 130 G.J. Coles & Co Ltd & Ors v Retail Trades Industrial Tribunal & Ors (1987) 7 NSWLR 503 CON Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 729-30 and 743-4 CON Taylor v L, ex parte L (1988) 1 Qd R 706 at 714 CON Weightman v Gold Coast City Council & Anor (2003) Qd R 441, 448 FAA COUNSEL: Mr Skoien for the appellant Mr Rynne for the respondent SOLICITORS: Ryan and Bosscher for the appellant Mr Lohe, Crown Solicitor for the respondent [1] By a prohibition notice dated 30 October 2003 the Chief Executive of the Department of Families prohibited the appellant from – -- 1 of 15 -- 2 • providing child care in the course of a child care service • being engaged as a carer in, or staff member of, a child care service • providing care of a child, other than a child of whom you are a parent or guardian, for reward. (the Chief Executive’s decision). [2] Section 103 of the Child Care Act 2002 (the Care Act) provides that the Chief Executive may give a prohibition notice to a person “if the Chief Executive is satisfied there would be an unacceptable risk of harm to children if the person were responsible for providing care for the children”. [3] The appellant sought to have the Chief Executive’s decision reviewed. However, the Children Services Tribunal (the Tribunal) by a decision dated 2 April 2004 affirmed the Chief Executive’s decision (the Tribunal’s decision). [4] Section 130 of the Children Services Tribunal Act 2000 (the Tribunal Act) provides that a party to a review may appeal to the District Court against the Tribunal’s decision on the review under s 38(1), but only on a question of law. [5] By this appeal the appellant seeks an order setting aside the Tribunal’s decision and an order setting aside the Chief Executive’s decision. [6] The grounds of appeal are that the Tribunal erred:- 1. In failing to determine questions of law in the proceeding, including questions of construction of the Care Act, in accordance with s 33 of the Tribunal Act; 2. (a) In its construction of the expression “satisfied” in s 103 of the Care Act; and/or (b) In its failure to apply the proper construction of “satisfied” in its consideration of the matter; 3. (a) In its construction of the expression “unacceptable risk” in s 103 of the Care Act; and/or -- 2 of 15 -- 3 (b) In its failure to apply the proper construction of “unacceptable risk” in its consideration of the matter; 4. (a) In its construction of the expression “harm” in s 103 of the Care Act; and/or (b) In its failure to apply the proper construction of “harm” in its consideration of the matter; 5. (a) In its construction of the expression “unacceptable risk of harm to children” in s 103 of the Care Act and/or (b) In its failure to apply the proper construction of “unacceptable risk of harm to children” in its consideration of the matter; 6. In its acceptance of, and/or reliance upon, evidence that was inconsistent and/or inherently unreliable; 7. In its rejection of, and/or non-reliance upon, evidence that was uncontradicted and/or inherently reliable; 8. In its acceptance of and/or reliance upon, purported expert evidence where: (a) there was no evidence of expertise on the part of the relevant witness; (b) there was no evidence that that purported expert evidence was within the expertise of the relevant witness; (c) the basis for that purported expert evidence was not properly put into evidence; and/or (d) that purported expert evidence was inconsistent and/or inherently unreliable; 9. (a) In its acceptance of, and/or reliance upon, irrelevant considerations; and/or (b) Its rejection of, and/or non-reliance upon, relevant considerations; 10. In making findings based upon mere speculation; 11. In making inconsistent findings. 12. In making findings that were contrary to the weight of the evidence. 13. In failing to satisfy itself, within the meaning of s 103 of the Care Act, that there would be an unacceptable risk of harm to children, within the meaning of s 103 of the Care Act, if the appellant were responsible for providing care for children; -- 3 of 15 -- 4 14. In failing to exercise its discretion with regard to the issue of a prohibition notice under s 103 of the Care Act. [7] The Chief Executive’s reasons for issuing the prohibition notice are as follows:- “• In the period from September 2002 - October 2003 two allegations of sexual abuse have been made against you by children to whom you have been providing child care at the TELC. • The allegations relate to separate incidents and different children. • Both allegations relate to three year old female children and are of a sexual nature, and were referred to the police for investigation. • The first allegation was made on 4 September 2002. • Evidence pertaining to the second allegation made on 9 September 2003 includes: • disclosure of abuse to the mother by the child including the identifying of yourself by name as the abuser; • the child's presenting behaviour indicating fear of you. This behaviour was noted at the child care centre and in the home environment; • medical opinion that the child had symptoms that were not caused by an explainable influence, for example, an infection; and • an investigation undertaken by a Senior Child Protection Officer of this department in relation to this matter has satisfied me that the child's family have acted protectively and that the extended family and social network do not present a risk to the child. • The second allegation was referred to the local Suspected Child Abuse and Neglect Team, a multi-disciplinary team expert in the assessment of child abuse matters. This Team endorsed a prohibition notice being issued to you supporting the view that your continued employment in child care poses an unacceptable risk to children. • I am aware that the second child was interviewed by police and a departmental officer. A disclosure was not forthcoming, however, this is consistent with disclosure patterns of children and does not necessarily indicate the abuse did not occur. -- 4 of 15 -- 5 • Senior Child Protection Officers and Specialist Sexual Assault workers have advised that the inability of young children to provide verbal disclosures, particularly spontaneous narratives of their experiences, is not uncommon. Evidence in the area of child sexual abuse indicates that very young children including the child care population are amongst the most vulnerable children and are unlikely to provide verbal disclosures that meet standards for criminal prosecution. • A similar complaint of sexual abuse was made on 1 October 1999 regarding a four year old female child in the BSLDCC who named the perpetrator as "D". At the time of the complaint you were engaged as the group leader in the child's group. The child was removed from care following the incident. • The consistent and serious nature of the allegations and the complaint combined with supporting evidence presents an emerging pattern which satisfies me that there would be an unacceptable risk of harm to children if you were responsible for providing care to them.” .... [8] Section 51 (2) of the Tribunal Act provides that in conducting its proceedings the Tribunal – (a) must observe procedural fairness; and (b) must act quickly, and with as little formality and technicality as is consistent with a fair and proper consideration of the issues before it; and (c) is not bound by the rules of evidence; and (d) may inquire, and inform itself of anything in the way it considers appropriate. [9] In reaching its decision the Tribunal stated it was guided by the object of the Care Act s 8(1) which is “to protect, and promote the best interests of children receiving child care”. Further, the guiding principles – (a) Child care should be provided to a child in a way that (i) protects the child from harm; and (ii) respects the child’s dignity and privacy; and (iii) promotes the child’s wellbeing; and (iv) provides positive experiences to the child. [10] The Tribunal also noted that harm is defined in s 9 of the Child Protection Act 1999 as follows:- -- 5 of 15 -- 6 (9)(1) Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by— (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation.” Harm is defined in the same terms in s 4 of the Tribunal Act. [11] In reaching its decision the Tribunal found the background to be:- “1. On 4 September 2002, the Director TELC advised the Department of Families that a parent, Ms PB, had alleged that DA had taken her child, E-JB (aged 3 years) into a cubby house and taken her pants down. 2. The director was advised by the Department to contact the police. The police conducted interviews with E-JB and with DA. The police decided there was insufficient evidence to proceed with criminal charges and referred the matter to the Maroochydore Suspected Child Abuse and Neglect (SCAN) team. SCAN considered the referral on 19 September 2002 and recommended that the case be closed. 3. On 1 October 2003, Ms KE-J contacted the Department of Families (Child Protection) and stated that her 3 year old daughter, I had come home from the TELC on 9 September 2003 with an inflamed vagina. According to Ms E-J, I said at bath time 'my fanny is sore' and when her mother asked why she said, 'because D touched it'. Ms E-J took I to Dr CS on 9 September 2003 and he ordered some tests, when the results came back on 29 September 2003 they were inconclusive. 4. On 30 September 2003, Ms E-J discussed the matter with the director of TELC and removed I from the Centre. 5. When Ms E-J contacted the Department of Families, they referred the matter to the police (JAB) on 1 October 2003 and I was interviewed. She made no disclosures. The police attended the TELC on 2 October 2003. The police concluded that there was insufficient evidence to proceed with criminal charges. 6. A third reported incident allegedly occurred at SCCC, Bundaberg in October 1999. There was an incident where Ms GW reported that her four year old daughter, JW came home from the Centre complaining of a sore vagina. On examination, J had paint in her vagina. J reported that the perpetrator was named D. At the time, J's mother and the Centre staff assumed that this referred to a boy in the group called DC - whom they stated had behavioural problems. -- 6 of 15 -- 7 7. In light of the two subsequent incidents. the Department of Families have concluded that this allegation may also have referred to DA who was the group leader in the D Room at the time of this incident. The incident was not reported to the police. No independent investigation was conducted until November 2003 when joint Department of Families and police interviews were undertaken.” [12] Further, in para 26 of the Tribunal’s decision the Tribunal set out a summary of the Chief Executive’s case:- “(i) I E-J has consistently and continually verbalised to her mother that DA touched her genital area. There was redness to her genital area as examined by her doctor. (ii) I has demonstrated a range of behaviours indicating fear of DA in a number of settings including home, the child care centre and whilst on holidays. Mr and Ms E-J were able to articulate a change in I's personality and presenting behaviours which resolved when she was no longer having any contact with DA or the TELC. (iii) E-J B verbalised to her mother that DA had taken her into the cubby house, pulled down her pants and touched her bottom. Further that this also happened to L, L and G. (iv) Mrs B was able to articulate a change in E-J's presenting behaviours in the three weeks prior to and following the disclosure. Mrs B has stated that E-J appears much happier at the centre she is currently attending and is coming home brighter and more responsive. (v) Police investigations and child protection assessments in relation to both I E-J and E-J B have identified no information or indicators to suggest they were abused by any other person. The children's presenting behaviours are consistent with children that may have been subject to sexual harm as indicated in their disclosures. (vi) DA had been providing direct care to both of these children. (vii) The disclosures to the mothers are consistent with disclosures made by very young children and it is not uncommon that police are unable to obtain an adequate disclosure during interviews with children of this age. (viii) As evidenced in literature, children of this age do not have the experience or capacity to fabricate allegations of abuse. They do not present information in a temporally or logically ordered framework and are egocentric and assume that you have the same experience and perspective as they do so, they see no -- 7 of 15 -- 8 need to explain the context of their thoughts or to correct your mis-perceptions. The disclosures and any apparent inconsistency on questioning are consistent with this and there appears to be no evidence of any fabrication of the allegations or coaching [Hewitt, S.K., Assessing allegations of sexual abuse in preschool children: 1999]. (ix) A further incident from 1999 has been identified from the SCCC in Bundaberg. This incident related to a three year old female and could be sexual in nature. Whilst there is insufficient evidence to identify that DA had a role in the incident involving JW there is also insufficient information to identify that he did not have a role. With the current knowledge of two other unrelated disclosures it is not unreasonable to be dubious of DA's role in the incident with JW particularly given the apparent inconsistency and collusions by staff at the child care centre. (x) There is a clear pattern of consistent disclosures from a number of independent sources indicating that DA has been inappropriately engaged with children in his care in a sexual manner. The two incidents from 2002 and 2003 represent a pattern that indicated a high potential for further similar incidents that place other children at significant risk. The disclosures have been provided independent of each other, with no maliciousness and made repeatedly. The third incident from 1999 could support this pattern and as indicated it is not unreasonable to be dubious of DA’s role in this incident given the benefit of hindsight. (xi) Evidence in the area of child sexual abuse places great significance on the disclosures of children. The disclosures of IE-J and E-JB are consistent with disclosures made by very young children and should be taken on face value as it is further known that children of this age do not have the experience or ability to fabricate allegations of abuse. (xii) Research suggests that sexual abuse is a compulsive or addictive behaviour and that people with a history of sexually offending against children have a high rate of recidivism, even if they participate in a treatment program [Marshall & Barbaree, 1988]. (xiii) Protective factors may influence or reduce the likelihood of future harm and need to be considered in any assessment of likelihood of future harm and need to be considered in any assessment of likelihood and degree of future harm. The child care staff and children in this environment are subsequently more vulnerable. -- 8 of 15 -- 9 (xiv) The assessment of abuse in pre-school populations cannot rely on criminal prosecution and needs to focus on child protection assessments and duty of care protocols. (xv) It has been assessed by the Department of Families that DA represents an unacceptable risk to children in the child care population given: • child disclosures and supporting evidence; • the vulnerability of the child care population; • inability to implement adequate protective factors within the child care context; • high rate of recidivism of people sexually offending against children; • the assessed high probability of another incident occurring; • the serious nature of the alleged abuse, and the potential for significant negative consequences for children and their families.” [13] Further, part of a report from Ms Aspinall called by the Chief Executive as a witness on the hearing before the Tribunal is set out in para 38 of the Tribunal’s decision. That part of the report is:- “Very young children including the child care population are among the most vulnerable children and are unlikely to provide verbal disclosures that meet standards for criminal prosecution despite the fact that they do not have the experience or capacity to fabricate allegations of abuse.” [14] Four witnesses were called on the hearing before the Tribunal and other evidence relied upon by the Tribunal is set out in its decision. [15] In its discussion of the evidence the Tribunal states that it gave minimal weight to the allegation about what it described as the third incident. Further, the investigation into the third incident was so superficial at the time of the complaint that little weight could be attributed to it. Finally, an investigation in 2003 was so long after the event that it could shed little light on the circumstances. -- 9 of 15 -- 10 [16] However, the Tribunal states the investigation into the third incident established that the appellant was the group leader in the room when the third incident occurred and the Tribunal questioned whether a four year old boy (if he were the culprit) would have the manual dexterity to put paint in the vagina of his classmate. The Tribunal goes on to state that the third incident was inadequately investigated and could not contribute significantly to assessing the risk posed to children by the appellant. Nevertheless, it remains a concern in child protection terms. [17] The Tribunal noted it had to be satisfied there would be an unacceptable risk of harm. On the basis of all the evidence before it, the Tribunal was satisfied that there would be an unacceptable risk of harm to children if the appellant were responsible for providing care for the children. The Tribunal made a specific finding that it accepted the evidence of expert witnesses, Ms Karren Aspinall and Detective Sergeant Brewer that allegations of this kind are extremely rare in the child care industry. The Tribunal also found the investigation into each of the incidents was deficient. However, the deficiencies were not sufficient to reduce the probability of risk. [18] Regarding the first ground of appeal this raises s 33 of the Tribunal Act. It is submitted there is no evidence on the face of the record that the Tribunal ensured that the questions of law arising in the proceedings were decided by a lawyer. [19] In my opinion this is not a case of deficiencies in the procedures towards the making of an award as occurred in G.J. Coles & Co Ltd & Ors v Retail Trades Industrial Tribunal & Ors (1987) 7 NSWLR 503. That case involved the Retail Trade Industrial Tribunal, a body established under legislation in New South Wales -- 10 of 15 -- 11 and consisting of a judge and two assessors. The New South Wales Court of Appeal held that as the assessors were not notified of a “sitting” of the Tribunal and therefore did not participate in the “sitting” of the Tribunal an award made by the chairman alone was invalid. In this appeal there is no evidence of any deficiency in the procedures adopted by the Tribunal towards reaching its decision. [20] In my opinion s 33 of the Tribunal Act does not require that it must appear on the face of the reasons for the decision that questions of law arising in the proceedings were decided by a lawyer. Further, until the contrary is shown, it is to be presumed that the questions of law that arose in the proceedings were decided by a lawyer who was a member of the Tribunal. Further, the law is correctly set out in the Tribunal’s decision. [21] Except for ground of appeal No 14 the remaining grounds of appeal relate to the construction and application of the relevant statutory provisions to justify the issuing of a prohibition notice and what evidence the Tribunal could or should rely upon in reaching its decision. [22] Ground of appeal No 14 relates to an argument that even if the Tribunal was satisfied that there was an unacceptable risk of harm there remained a discretion to be exercised. That is, even if the Tribunal reached conclusions adverse to the appellant, there were nevertheless relevant considerations which could justify not issuing a prohibition notice. [23] In my opinion the Tribunal correctly identified the need to determine if there was “unacceptable risk” and whether the Tribunal was satisfied that the risk exists. In particular the Tribunal stated it was guided with respect to the element of -- 11 of 15 -- 12 “satisfaction” by the approach taken by Thomas J (as his Honour then was) in Taylor v L, ex parte L (1988) 1 Qd R 706 at 714. At 714 his Honour said:- “the Children’s Services Act does not itself prescribe any particular standard, referring only to the need for the court to be “satisfied” (s 49(4) and 52). In proceedings of the present kind the consequences of an adverse finding will be, inter alia, to deprive a child of her remaining parent, to deprive the parent of the child, and to split up the family unit which includes her parents and siblings. On the other hand the consequence of failing to make such a finding may be to leave a child a continuing victim of sexual abuse. It is impossible to give any precise description of the point of balance required in such proceedings according to the Briginshaw scale. It can however be said that such a finding should only be made in reliance on convincing evidence and upon a firm satisfaction. A finding made on suspicion alone, or on the footing that it would be safer for the child to be taken away from her father in case a suspicion might be true, would be quite wrong. We have not yet reached the situation where the traditional preferred role of the parent has been displaced in favour of arrangements made by State …, and a finding that would produce such a result ought not to be made lightly.” [24] In reaching its decision the Tribunal stated that it based its decision on “all the evidence before it”. In all the circumstances that included “the third incident”. Further, that included the evidence from Ms Aspinall and Detective Sergeant Brewer who were both described as “expert witnesses”. There is no dispute in this appeal Detective Sergeant Brewer was not an expert witness. Further, “all the evidence” included Mr Burns’ statement of 18 February 2004 that “children of this age do not have the experience or capacity to fabricate allegations of abuse” and Ms Aspinall’s evidence that very young children are “unlikely to provide verbal disclosure that meets standards for criminal prosecution despite the fact that they do not have the experience or capacity to fabricate allegations of abuse”. [25] With respect to the third incident the evidence before the Tribunal was that the mother of the child said to her mother “the little boy D did it” (see Attachment 6 the -- 12 of 15 -- 13 summary of interview in the Department of Families material presented to the Tribunal). As far as I can determine from the material before the Tribunal there was no claim by anyone that D, an adult or D the carer did anything to the child. Further, there was a little boy “D” attending the relevant child care centre at the time of the alleged incident. Further, as far as I can determine from the material before the Tribunal there was no evidence nor basis for a finding by the Tribunal that a young boy would not have the dexterity to put paint in the vagina of his classmate. [26] Although the Tribunal must act quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the issues before it and is not bound by the rules of evidence, and may inquire into and inform itself of anything in the way it considers appropriate, I do not accept the Tribunal can, in relation to the third incident, disregard the statement of the child to its mother that a “little boy” did it. [27] Therefore, although the Tribunal stated it gave minimal weight to this allegation in reaching its decision, in my opinion, in all the circumstances, no weight could be given to this allegation. In my opinion the Tribunal ought to have given no weight to this allegation and have said so. [28] Further, notwithstanding the latitude the Tribunal has in conducting its proceedings, as far as I can determine from the material before the Tribunal there was no evidentiary basis established that it could be taken to be a fact that children of the age of the children involved in these allegations do not have the experience or capacity to fabricate allegations of abuse. -- 13 of 15 -- 14 [29] It is stated in Cross on Evidence paragraph 1255 that in general a witness can only give evidence of a fact of which the witness has personal knowledge, having perceived it with one of the five senses. Further, the only exception to the general rule is the expert witness testifying to matters calling for expertise. Finally, parts of testimony may be on information derived from textbooks or on what a witness has learned from other people. This latter consideration would appear to relate to a witness giving expert evidence. [30] In my opinion, notwithstanding the latitude the Tribunal has in conducting its proceedings before the Tribunal acts on expert evidence, a useful guide is to be found in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 729-30 and 743-4. [31] Finally, the Tribunal specifically accepted the evidence of Ms Aspinall and Detective Sergeant Brewer that allegations of this kind are extremely rare in the childcare industry. It is difficult to see how the number of allegations in the childcare industry can assist to determine the questions to be determined by the Tribunal. [32] The respondent submits even if these aspects of the Tribunal’s decision are open to be questioned on this appeal, nevertheless the complaint made by the child in the September 2002 incident and by the child in the October 2003 incident remain and can justify the Tribunal’s decision together with other relevant circumstances. [33] It was observed in Taylor that when the substantial issue concerns the welfare of an infant and the infant is too young to give evidence in court, hearsay evidence of conversations with the infant may be adduced. However, in the present matter, the -- 14 of 15 -- 15 Tribunal gave some weight to the third incident and said the incident remained of concern in child protection terms. Further, the Tribunal may have acted on a fact when the evidentiary basis for this ‘fact’ had not been established. Finally, the Tribunal may have acted on a ‘frequency’ argument for acceptance of the allegations. [34] In my opinion the question of law involved in this appeal is whether the approach taken by the Tribunal to the evidence before it could have materially affected its decision (Weightman v Gold Coast City Council & Anor (2003) Qd R 441, 448). [35] In my opinion having regard to the evidence before the Tribunal, the approach taken by the Tribunal to the evidence before it could have materially affected its decision. [36] In my opinion, it is not possible to say the Tribunal would have reached the same result based on the “other evidence”. [37] Therefore, I set aside the decision of the Tribunal dated 2 April 2004 and the prohibition notice dated 30 October 2003. [38] Regarding ground of appeal No 14 this relates to the exercise of the discretion. The limitations that could be imposed upon the appellant to make any risk of harm not “unacceptable” are something the Tribunal would take into account in reaching its decision. In view of the reasons that have caused me to set aside the Tribunal’s decision and the prohibition notice, I need say nothing further on this issue. -- 15 of 15 --