AH & GR v Department of Communities (Child Safety Services) [2012] QCAT 723

CITATION: AH & GR v Department of Communities (Child Safety Services) [2012] QCAT 723 PARTIES: AH & GR (Applicants) v Department of Communities (Child Safety Services) (Respondent) APPLICATION NUMBER: CML 215-10 MATTER TYPE: Children’s matter HEARING DATE: 24 and 25 November 2011 HEARD AT: Rockhampton DECISION OF: Ms Williams, Presiding Member Ms Beckinsale, Member Ms Watters, Member DELIVERED ON: 1 March 2012 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal: 1. Dismisses the application; and 2. Confirms the decision of the Department of Communities (Child Safety Services) to refuse a certificate of approval as approved kinship carer for the subject child. CATCHWORDS: Human Rights – Children’s Matter – Child Protection Act – Application to review decision to refuse a ‘certificate of approval’ as approved kinship carer – Where subject child and his paternal family identify as Aboriginal – Where matter heard de novo – Whether the applicants are suitable persons to be an approved kinship carer for the child – Whether the applicants are -- 1 of 13 -- 2 able to meet the standards of care in the statement of standards – Whether the applicants are able to help in appropriate ways towards achieving plans for the child’s protection. REASONS FOR DECISION [1] The applicants sought to review the decision made by the Department of Communities (Child Safety Services) to refuse a „certificate of approval‟ as approved kinship carer for the subject child TS. [2] On Thursday and Friday, 24 and 25 November 2011 a hearing was held to determine the matter. Although leave was granted, the applicants appeared without legal representation. [3] At the conclusion of hearing evidence, the Tribunal granted leave to the parties to file written submissions and reserved its decision. Relevant Background [4] On 28 October 2010 an application was filed in the Children’s Court at Rockhampton, for a Child Protection Order granting custody of TS to the Chief Executive for a period of two years. An interim Child Protection Order was granted, placing the child in custody of the Chief Executive. [5] On 6 July 2010 Ms AH and Mr GR lodged an application for a certificate of approval as a kinship carer. [6] On 10 September 2010, Ms Julie Cook (Manager of the Rockhampton South Child Safety Service Centre and delegate of the Chief Executive) received a copy of an outcome from the Department of Communities, Central Screening Unit regarding Ms AH and Mr GR’s – and granted provisional approval pursuant to Division 3A of the Child Protection Act. -- 2 of 13 -- 3 [7] On 10 September 2010 Ms Margie Newton, an external consultant, “received a referral from [Rockhampton South, Child Safety] regarding the child TS. The referral requested that [she] complete a thorough assessment in relation to the best kinship placement option for [the child] into the future.”1 [8] Because other relatives of the subject child also made an application for a certificate of approval as kinship carer, Ms Newton further assessed the suitability of these persons and made a recommendation, as to the optimal placement option for the child. [9] The report was finalised on 21 October 2010 and identified inter alia a number of issues the author believed to adversely affect the applicants’ capacity to provide the appropriate standard of care as kinship carers for the subject child. [10] On 25 January 2011, Ms Cook on behalf of the Chief Executive made a formal decision to refuse Ms AH and Mr GR’s application to be approved as kinship carers. In her Statement of Reasons, Ms Cook explains the basis upon which the reviewable decision was made: “Section 135(1)(b) of the Child Protection Act 1999 requires that I must be satisfied of all of the matters set out here. Given the assessment information made available to me I can not be satisfied of all matters and thus have accordingly refused the application.”2 [11] This decision was formally communicated in writing to the applicants on 28 January 2011. 1 Assessment of Kinship Carer Options Report, Margie Newton, page 2, October 2010. 2 Per paragraph 33 of Statement of Reasons, dated 2 February 2011 prepared by Julie Cook, Manager, Rockhampton South Child Safety Service Centre, Department of Communities (Child Safety). -- 3 of 13 -- 4 [12] Ms AH exercised her right to have the Department’s decision reviewed by filing an application with the Queensland Civil and Administrative Tribunal (QCAT). She made the following submissions as to why she believed the decision is wrong: “The report Margie Newton [independent consultant] has written up, I believe is incorrect. Margie made out that my children and family have problems, which we do [but] the way Margie described my family was poor criminals (sic) and basically no structure in the family. Its descrimination (sic) to us and anyone that knows our family life.”3 [13] On 29 March 2011, a compulsory conference was convened in relation to the matter. At that time, Ms AH was advised that her partner, Mr GR would need to be joined as a party to the proceedings as the application for a kinship carer certificate was a joint application. Neither Ms AH or Mr GR are able to hold a carer certificate as a single entity because section 132(3) of the Child Protection Act 1999 states that a person living with his or her spouse may only hold a certificate jointly with the spouse. [14] Following confirmation from Mr GR of his intention to be joined as a co- applicant, further compulsory conferences were held on 6 June and 15 July 2011 to prepare the matter for hearing. [15] On 15 November 2011, an application was received from the subject child’s biological mother and the child’s current kinship carer (the child’s maternal uncle) to be joined to the proceedings. The Tribunal refused their applications. Law Which Applies in this Matter Child Protection Act 3 Page 4 of the Application to Review a Decision – Children’s Matters’ filed on 24 December 2010. -- 4 of 13 -- 5 [16] Division 3 of the Child Protection Act outlines the provisions relating to the approval of foster carers and kinship carers. In making its decision the Department states consideration was given to sections 5, 6, 122, 135, 143 and Schedule 1 of the Act. A copy of the applicable law was attached and marked ‘Exhibit B’ to the respondent’s Statement of Reasons. The Tribunal will not restate in detail those sections, except section 135(1)(b), which gives rise to the reviewable decision. Section 135(1) Restrictions on granting application (1) The chief executive must not grant [emphasis added] an application for, or to renew, a certificate unless the chief executive is satisfied of the following matters- … (b) For a kinship carer certificate- (i) The applicant is kin to the child to whom the approval relates; and (ii) The applicant is a suitable person to be an approved kinship carer for the child; and (iii) All members of the applicant‟s household are suitable persons to associate on a daily basis with the child; and (iv) The applicant and each adult member of the applicant‟s household have a current positive prescribed notice or current positive exemption notice; (v) The applicant is able to meet the standards of care in the statement of standards; and (vi) The applicant is able to help in appropriate ways towards achieving plans for the child‟s protection. (2) In this section- Adult member, of an applicant‟s household, means a person who is an adult member of the household both at the time when the application is made and when it is decided. [17] Because the subject child and his paternal family identify as Aboriginal, and are accepted by members of an Indigenous community in the central -- 5 of 13 -- 6 Queensland region, the provisions outlined in section 6 of the Child Protection Act apply. Queensland Civil and Administrative Tribunal Act 2009 [18] QCAT has jurisdiction to review the substantive decision de novo,4 by hearing and deciding the matter fresh and on the merits.5 [19] As Her Honour the Deputy President in Kehl v Board of Professional Engineers6 of Queensland points out: “The Tribunal‟s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal‟s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct” (emphasis added). [20] Approximately ten (10) months had passed, since the Department’s reviewable decision was made 7 and the date of hearing. During this time, the Tribunal notes some change to the applicants’ circumstances – which affects their ability to satisfy some of the criteria listed in section 135(1)(b) of the Act. Consequently, additional evidence was produced at hearing which the respondent did not have the benefit of considering at the time when the substantive decision was made. 4 Pursuant to section 20 QCAT ACT per Holmes and White JJA and Boddice in Chief Executive, Queensland Health v Jattan [2010] QCA 359. 5 Section 20(2) QCAT Act. 6 [2010] QCATA 058. 7 25 January 2011. -- 6 of 13 -- 7 [21] This raises the question - at what period should the Tribunal consider the applicants’ state of affairs and assess their suitability to hold a certificate of approval as kinship carers – as at 25 January 2011 when the Department’s decision was made, or at the time the Tribunal makes its decision? Hearing De Novo [22] In considering what approach should be made by a Tribunal when reviewing a matter de novo; Dorney QC DCJ in McNab Constructions Australia Pty Ltd v Queensland referred to the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286: “The Court as a whole decided, for the case that it was considering, that when that Tribunal reviews a decision where the powers of that Tribunal include affirming, varying or setting aside the decision under review (including making a decision in substitution or remitting the matter for reconsideration) the question which that Tribunal must consider is a question which invites attention to the state of affairs as they exist at the time that Tribunal makes its decision … unless the particular legislation demands that the critical statutory question to be answered is whether a criterion was met, or not met, at a particular date: see, for instance, Hayne and Haydon JJ at 315 [101]” [23] Therefore in the present matter, the Tribunal must consider the applicants’ state of affairs, as they exist at the time of this decision. Issues Relevant for the Tribunal’s Decision [24] It is clear from the language of section 135(1)(b) of the Child Protection Act, that the matters listed therein - namely paragraphs (i) to (vi) - are mandatory requirements. In other words a „certificate of approval to be a kinship carer‟ cannot be granted unless the Chief Executive is satisfied that all of the criteria can be met by Ms AH and Mr GR. -- 7 of 13 -- 8 [25] Failure to satisfy a single criterion is fatal to the application; and this is the situation in the present matter. [26] The Tribunal dismisses Ms AH and Mr GR’s application and confirms the Department’s decision in consideration of the following issues. Criterion: The applicant is a suitable person to be an approved kinship carer for the child (s135(1)(b)(ii)) [27] The Tribunal observed the applicants to be generally respectful and supportive of each other. At hearing, Ms Cook even noted the improvement of the couple’s communication skills and development of their relationship in the twelve months since the completion of Ms Newton’s report. This maturation of Ms AH and Mr GR’s relationship, can only positively impact on their suitability to be suitable persons for approved kinship carers. [28] The Tribunal further believes the applicants’ love for their nephew to be genuine and finds their commitment to have the child remain connected to his paternal Indigenous family commendable. These actions are consistent with the principles listed in section 5C of the Act, whereby Aboriginal or Torres Strait Islander children should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community8 - and are factors in favour of the applicants. [29] However it cannot be overlooked that during the hearing, both applicants’ gave evidence that raises concerns as to their ability to work openly and honestly with the Department. In particular the Tribunal notes at page 10 of Ms Newton’s assessment, where she states: “Ms H reports that she enjoys a good state of general health. Ms H did not acknowledge any health condition that could compromise her ability to care for T [the subject child].“ 8 Section 5C(1)(a). -- 8 of 13 -- 9 [30] Yet the evidence of Mr GR was that his partner had been experiencing an ongoing medical issue, which was significant enough to affect his ability to search for employment. Despite the seriousness of Ms AH’s condition, both applicants failed to disclose this information to the Department. Such conduct therefore places into question the applicants’ character and their suitability to be approved kinship carers. Criterion: The applicant is able to meet the standards of care in the statement of standards (s135(1)(b)(v)) [31] Section 122 of the Child Protection Act lists the standards in which a child, in the care of an approved kinship carer9, is to be cared for. In refusing to grant a certificate for approval, the Department was concerned about the applicants’ ability to meet the following standards: (a) The child’s needs for physical care will be met, including adequate food, clothing and shelter (s122(1)(b)) [32] On behalf of the Department, Ms Noelene Ford conducted a Household Safety Study of the applicants’ home. The assessment found there were “physical risks posed to a young child due to structural and environmental factors within the home”, namely:  The size of the property - two bedrooms with an enclosed ‘sleep out’ veranda, which also functions as a third bedroom – to accommodate three adults and four children, including TS. Concerns were raised as to the personal space and privacy available to the subject child;  The side deck, which is described as being in a state of disrepair and is currently barricaded to prevent people from accessing it; 9 Section 122(1) is applicable to children placed in care under section 82(1) of the Act. Section 82(1)(a) includes a child in the care of an approved kinship carer. -- 9 of 13 -- 10  Inadequate fencing surrounding the property is said to limit a child’s ability to experience outdoor activities at home unless closely supervised by an adult;  Other household safety issues including the accessibility of potentially hazardous items such as razors and shampoo (although cleaning products and medications were secured); and  Evidence of persons smoking at the property - with the presence of a used ash tray in a bedroom and Mr GR admitting to smoking downstairs when the children are not home. This practice is contrary to Departmental policy that prohibits smoking within homes where children in care reside, because of the significant fire, health and safety risks. [33] Ms Ford did concede at hearing that some of these safety issues could be rectified; however the Tribunal notes these issues currently remain outstanding. [34] Ms AH and Mr GR have continuously maintained since the publication of Ms Newton’s report in October 2010, many of the aforementioned risks would be alleviated by a ‘planned’ renovation of the property. It was clear at hearing, that those so-called plans to renovate have not progressed. In particular, the Tribunal found the applicants’ evidence inconsistent as to their accessibility to funding and the timeframe required to remedy these risks. [35] Whether these matters are rectified at a future date is irrelevant to the deliberations of this Tribunal – as the assessment of the applicants’ state of affairs, is at it presently exists. Hence the Tribunal is not satisfied the applicants are currently able to meet the subject child’s physical needs. (b) The child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met (s122(1)(e)) -- 10 of 13 -- 11 [36] Submissions were made by the respondent as to the applicants’ ability to satisfy this criterion, noting the impediments to their time and financial resources. The Department observed that the applicants “were already caring for their four biological children, one of whom has special needs and a teenage son who was struggling with his own drug misuse and personal issues.”10 [37] The Tribunal accepts in part, this argument and is not convinced from the applicants’ evidence they effectively manage these challenges confronting their children. However it is also noted, Mr GR is currently working and in receipt of a regular income – thus placing the couple in a better position to provide for the material needs of the subject child. (c) The child will receive positive guidance when necessary to help him or her to change inappropriate behaviour (s122(1)(g); and Techniques for managing the child’s behaviour must not include corporal punishment… (s122(2)) [38] At the time when the Department made the reviewable decision, much was made of Mr GR’s positive test result to high levels of cannabis during a random drug screen in October 2010. This was significant in that Mr GR was involved in transporting Ms AH and the subject child to contact visits. As a male carer for TS this behaviour raises concerns about Mr GR’s ability to be a positive role model – and ultimately the child’s safety if placed in the applicants’ care. [39] However to Mr GR’s credit, he participated in a further random drug test11 and returned a negative result for illicit substances. When questioned at hearing about his illicit drug taking, the Tribunal found Mr GR to be forthcoming and candid. On the face of his oral evidence, Mr GR appears 10 Per written submissions filed by the respondent at the conclusion of the hearing. 11 The test was conducted in November 2011. -- 11 of 13 -- 12 to have ceased using drugs, including marijuana, following an ultimatum from his partner. He also explained another motivation for not using drug was his current job required him to be subjected to random drug tests. This is a factor in favour of the applicants. [40] As to the issue of corporal punishment, Ms AH admitted to the occasional use of physical discipline within the family home. She also confirmed an awareness of Departmental policy and legislation that states children in care must not be subject to the use of corporal punishment. However Ms AH further explained that all children living within her home, including the subject child would be treated equally. [41] Although Ms AH indicated a preparedness to change her methods – by declaring in her written submission that “[GR] and myself will always abide (sic) all of the rules under the Statement of Standards”12 – the fact remains, corporal punishment is part of the family’s current disciplinary regime. Based on the limited evidence available at hearing, the Tribunal remains unconvinced as to the alternate strategies that would be used to manage a child’s inappropriate behaviour. Criterion: The applicant is able to help in appropriate ways towards achieving plans for the child’s protection (s135(1)(b)(vi)) [42] The respondent expressed a concern that “conflict with maternal family … would likely impact on [AH] and [GR‟s] ability to encourage extended family contact and promote a positive attachment between [subject child] and maternal family members.”13 [43] In the period since the Department made its’ reviewable decision, it appears Ms AH has acknowledged the consequences her behaviour may have on the child. She writes in her statement, “should [TS] live with [GR] 12 Per page one of written submissions filed by the applicants at the conclusion of the hearing. 13 Per written submissions filed by the respondent at the conclusion of the hearing. -- 12 of 13 -- 13 and myself [AH] and our children, we as a family will make sure there is never any inflamed situations.” [44] The Tribunal accepts Ms AH may have a legitimate intention of encouraging the subject child to maintain a relationship with both his maternal and paternal family. However there is limited evidence to demonstrate Ms AH’s proven ability to remove her self from the family- conflict and ensure the emotional and psychological needs of TS remain the priority. Conclusion [45] For the reasons outlined herein, the Tribunal: (1) Dismisses the application; and (2) Confirms the decision of the Department of Communities (Child Safety Services) to refuse a certificate of approval as approved kinship carer for the subject child. -- 13 of 13 --