APT and APS v Director General Department of Family and Community Services
[2013] NSWADT 116
•28 May 2013
Administrative Decisions Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: APT and APS v Director General Department of Family and Community Services [2013] NSWADT 116 Hearing dates: 23 & 23 April 2013 Decision date: 28 May 2013 Jurisdiction: Community Services Division Before: C Huntsman, Judicial Member
M Bolt, Non-Judicial Member
P Foreman, Non-Judicial MemberDecision: The decision is affirmed
Catchwords: Review of a reviewable decision - review of a decision to remove from an authorised carer the responsibility for daily care and control of the subject children - whether the decision to remove the children is the correct and preferred decision as at the date of hearing Legislation Cited: Administrative Decisions Tribunal Act 1997
Community Services (Complaints, Review and Monitoring) Act 1993
Children and Young Persons (Care and Protection) Act 1998Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: APT and APS (Applicants)
Minister for Family and Community Services (Respondent)Representation: Counsel
S Gardiner (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 134008 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
REASONS FOR DECISION
Introduction
In these reasons for decision, the applicants are referred to by the pseudonyms APS and APT (see section 126 of the Administrative Decisions Tribunal Act 1997). The children, the subject of the decision, have also not been identified. The children, three siblings (two boys and one girl), aged 14, 10 and 7 years at the date of hearing, are referred to as Child 1, Child 2 and Child 3. Child 1 has been in the care of the applicants for 8 years, remains in their care, and is aged 14 years (male child). Child 2, a girl aged 10, has resided with the applicants for 8 years and Child 3, a boy aged 7, has resided with the applicants for five and half years, from the age of 16 months.
The applicants are husband and wife, and are authorised carers, under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). The applicants applied and were authorised as foster carers on 27 September 2003, to care for up to six children, aged from one to fifteen, including Aboriginal children.
Child 1 and Child 2 were placed in the care and control of APS and APT in March 2005 and Child 3 was placed with the applicants in May 2007 after a transition period. A Placement Agreement was signed for the care of Child 3 by the applicants on 5 June 2007. The three children remained in the care and control of APS and APT until 14 February 2013. Child 1 remains with the applicants at the time of the hearing, Child 2 and Child 3 have been placed in alternative care arrangements.
On 6 June 2006 the Children's Court made final orders placing Child 1, Child 2 and Child 3 in the parental responsibility of the Minister until each attains 18 years.
Child 1, Child 2 and Child 3 have been diagnosed with foetal alcohol syndrome with significant intellectual disabilities.
Child S (a female born in 2003) and Child B (sister of Child S, born in 2005) were placed with APT and APS on 9 September 2011 on a short term basis during a period of transition into a permanent placement. On 3 January 2012 Child S and Child B were moved into their permanent placement.
On 16 February 2012 a risk of harm report was received. It was alleged that Child 1 approached a worker at high school stating that he was going to run away from home because he was yelled at, and sworn at that morning, and also stated that he has been hit with a broomstick, belt, then slapped around his head, had his mouth bleed and been pushed to the ground. He stated that this morning when he did not want to get out of bed he was yelled at and sworn at. During an interview conducted subsequently Child 1 stated that "they only yell now, they hit me a few times in primary school." (p26 s58 documents). This allegation is subject of a pending AAE (Allegation Against Employee) investigation.
On 16 February 2012 Child 2 during an interview said she had been hit with a broomstick in the past by her carer. This allegation is subject of a pending AAE (Allegation Against Employee) investigation. When Child 2 was interviewed she stated "[Child 1] outside, mum smack [Child 1]. She grabbed the broom." She also stated that she (Child 2) was hit with the broom. However a reading of the record of the interview (pages 29-34) of the s 58 documents indicates that Child 2 has difficulty answering questions with any clarity.
On 23 October 2012 Community Services engaged Assessments Australia to conduct an independent assessment of the applicants' ability as authorised carers. The report of the assessment raised a series of concerns regarding the applicants' lack of capacity and recommendations were made. One of the recommendations made was for cognitive and health assessment of APT and APS.
On 26 January 2013 a risk of significant harm report was received in relation to a conversation overhead between Child B and her friend that sexual abuse had occurred in her last placement. On 7 February 2013 Child B and Child S were both separately interviewed: Child B by a police officer and a Community Services officer, and Child S by a police officer only. On 14 February 2013 Child 2 and Child 3 were interviewed at school.
On 15 February 2013 NSW Police JIRT (Joint Investigation Response Team) forwarded a discontinuance notice to Community Services. Community Services JIRT continued with their investigation which was concluded on 15 March 2013. The JIRT Community Services found the sexual abuse allegations (by Child 1 of Child S and Child B) substantiated, concluding on the balance of probabilities that it is more likely than not that the sexual abuse did occur.
On 14 February 2013 APT was advised by the Caseworker, Ms T, by telephone, of the respondent's decision to place Child 2 and Child 3 in temporary respite care, and that the change of placement was a result of the investigation of the allegations of sexual abuse by Child 1 of Child B and Child S. Letters were sent advising of the placement change for each child, and the applicants' right to seek review of the decisions. On 1 March 2013 a further letter was written by the respondent advising APT and APS that Child 2 and Child 3 will remain in alternative placement until finalisation of various issues including the Allegation Against Employee (AAE).
By letter dated 1 March 2013 the applicants were advised of the respondent's decision:
(a) That interim arrangements apply until a number of issues are resolved
(b) That in the interim Child 2 and Child 3 will remain in alternative care arrangements
(c) That during the interim period until the AAE (Allegation Against Employee) investigations are complete, Child 1 shall remain in the placement with APT and APS and Community Services require adequate access to Child 1 to ensure Community Services legal responsibilities to Child 1 are maintained
(d) That ongoing casework, the ability of the applicants to demonstrate the core competencies of authorised carers and positive resolution of the AAE will determine if and when the children will be returned to the care of the applicants
The letter of 1 March 2013 detailed reasons for the decision as including that the incident investigated by the Joint Investigation Response Team (JIRT), which occurred in the applicants' home whilst undertaking the roles of authorised carers, had been substantiated. (The JIRT matter related to allegations that Child 1 sexually abused Child S and Child B.); and that there were outstanding allegations awaiting investigation, namely (a) alleged verbal abuse and physical discipline, dated 16 February 2012; and (b) allegation of "roping" a bedroom door shut, dated 14 February 2013. These were the Allegations Against Employee (AAE) which were awaiting investigation. The respondent's letter of 1 March 2013 also noted the advice provided by Community Services of the outcome of the independent review of the applicants' roles as authorised carers, conducted by Assessments Australia in December 2012, and recommendations made. The recommendations noted in the letter of 1 March 2013 were:
(i) the current authorisation of APT and APS as authorised carers be rescinded immediately;
(ii) that APS and APT are authorised as the short term carers of Child 1, Child 2 and Child 3 for a maximum of twelve months, when the authorisation be reviewed;
(iii) that Child 1, Child 2 and Child 3 remain in the care of the Minister;
(iv) that APT and APS be retrained as carers and the Code of Conduct, Placement agreement and general and mandated expectations for foster carers be reviewed,
(v) and that APS undergo health review by his treating specialist.
The applicants sought review by the tribunal of the decision of the respondent as detailed in the letter of 1 March 2013. The tribunal considers that the decision is one applying interim arrangements, until issues detailed in the letter are resolved. However, the interim arrangements include the removal of two children from the applicants' daily care and control.
Prior to the correspondence of 1 March 2013, which is the decision in respect of which the applicants have applied for review by the tribunal, the respondent made decisions and notified these decisions in respect of Child 2 and Child 3 to the applicants by correspondence dated 14 February 2013. That correspondence notified the applicants that, following information received as to alleged sexual abuse by sibling, the Department had conducted an initial assessment and decided to investigate the matter further, and had decided to organise a new placement for Child 3 and Child 2. The stated reason was to ensure the safety of the children during the investigation. The applicants were advised in the correspondence of their rights to have the decision reviewed internally and subsequently by the tribunal. The letter of 1 March 2013 is not expressed in terms of a decision and review rights are not notified. Rather, the letter of 1 March 2013 refers to a number of matters, and to interim arrangements, but also clearly indicates that the children will remain in the alternative placement (Child 2 and Child 3).
The parties' legal representatives indicated during the hearing that the real issue in the case, which was subject of the review proceedings, was the decision to remove the children, being Child 2 and Child 3, and for the children to remain in alternative care placements.
The position of the applicants was that the tribunal should find that the sexual abuse did not occur, and that the children are not at risk with the applicants. The position of the applicants was also that the allegations of sexual abuse that give rise to the perceived risk to Child 2 and Child 3 are factually so implausible, so lacking in substance, and so unclear, that this must lead the tribunal to conclude that there is no risk with the three children remaining in the care of the applicants. The applicants submit that the respondent formed a view that the applicants knew of the alleged sexual abuse and this forms part of the respondent's reason for finding that the children are not safe in the applicant's care. The applicant maintains that there could be no findings made on the evidence before the tribunal that the applicants knew of any alleged sexual abuse, or that the sexual abuse in fact occurred. The applicant's position is that the evidence does not disclose a risk to the children, and given the length of time that the children have been in the applicants' care, the correct and preferable decision is to have all three children placed with the applicant.
Given the position of the applicants, there was some focus in the proceedings on the adequacy of the evidence as to the sexual abuse having occurred. It was noted that the JIRT investigation, although finding the allegation substantiated, did not find it appropriate to prosecute Child 1, and this decision was in part based upon the difficulties presented by the evidence of the children. This is further discussed below.
The respondent's position was that the allegation of sexual abuse by Child 1 of Child S and Child B while the children were in the care of the applicants was serious, and there was evidence upon which a conclusion could be based that the applicants knew of the sexual abuse occurring. Even if the applicants did not know, the evidence overall including the report by Assessments Australia indicates that the applicants do not have protective capacity to ensure the safety of Child 2 and Child 3 if returned to their care. Further, there are outstanding allegations of physical abuse pending investigation by the reportable conduct unit. The children are said to be doing well in the alternative care placement.
ROLE OF THE TRIBUNAL
The decision to remove children from the daily care and control of a foster carer is reviewable by this Tribunal. S245(1)(a) and (c) Care Act read in conjunction with s. 38 Administrative Decision Tribunal Act 1997 (ADT Act) and s 28 Community Services (Complaints, Reviews and Monitoring) Act 1993.
In conducting this review, the Tribunal stands in the shoes of the administrator and is required to determine what is the correct and preferable decision having regard to all relevant material. We may have regard to all material that was relevant at the time of the original decision, as well as any further material that is relevant as at the time of the hearing (Administrative Decisions Tribunal Act 1997 s 63 and s 115; YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]).
On review, the tribunal may decide to affirm the respondent's decision, to vary that decision, to set aside that decision and make a decision in substitution thereof, or set aside that decision and remit it for further consideration by the respondent: see subsection 63(3) of the ADT Act. In addition to this, the tribunal is given the power to make recommendations under subsection 32(2) of the Community Services (Complaints, Reviews And Monitoring) Act 1993. Such recommendations are to be made 'for consideration by the person who made the decision concerned or the relevant Minister, if the decision was made by a service provider ...' A service provider is defined in section 4 of that Act to include the respondent.
STATUTORY PROVISIONS
The decision the subject of these proceedings is a decision taken under the Care Act and regulations.
The objects of the Care Act are set out at section 8 and provide as follows:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them;
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity; and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
The principles to be applied in the administration of the Care Act are contained at section 9.
(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
(2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:
(a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.
(b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.
(c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development.
(d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.
(e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.
(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.
Sections 11, 12, 13 and 14 of the Care Act provide for participation in decision-making and placement principles for Aboriginal children and young people.
Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people.
Section 134 of the Care Act provides for the objects of Chapter 8 of the Care Act in relation to out of home care for children:
The objects of this Chapter are:
(a) to create a high standard in the provision of out-of-home care, and
(b) to provide a model for the organisation of out-of-home care, and
(c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care.
Section 135 of the Care Act defines out of home care:
1) For the purposes of this Act, "out-of-home care" means residential care and control of a child or young person that is provided:
(a) by a person other than a parent of the child or young person, and
(b) at a place other than the usual home of the child or young person,
whether or not for fee, gain or reward.
The Care Act defines statutory and supported out of home care (s135A and s135B) and defines when a child or young person is a protected person. A young person who is a protected person may be placed in statutory out of home care. Section 136 provides that statutory out of home care may only be provided by an authorised carer.
The Care Act and Regulations make provision for the making and determination of applications for the authorisation of persons as authorised carers (s 137(2)(a)), for the imposition of conditions of authorisation (s 137(2)(c)) and for the cancellation or suspension of an authorisation (s 137(2)(e)). The Children and Young Persons (Care and Protection) Regulation 2012 provides for the authorisation of authorised carers and sets out the requirements and the code of conduct.
Pursuant to Chapter 8 Part 4 of the Care Act the authorised carer of a child or young person has defined authority with regard to the daily care and control of the child including authority to correct the behaviour of the child in accordance with the regulations (refer regulation 41 of the Children and Young Persons (Care and Protection) Regulation 2012).
Issue and Conclusion
The issue in this proceeding is whether the decision of the respondent to remove the children from the applicants' daily care and control (Child 2 and Child 3) was the correct and preferable decision. For reasons detailed below the tribunal finds that the decision is correct and preferable, on the evidence before the tribunal.
The Evidence
The applicants gave oral evidence to the tribunal at the hearing (APT gave lengthy evidence in person, and APS gave evidence by telephone) and each applicant also provided three written affidavits. Several documents were annexed to the affidavits of APT. The applicants' evidence included two affidavits by treating paediatrician, Dr MacDonald.
The respondent's evidence included affidavit evidence and oral evidence at the hearing by Ms T, a Casework Manager with the respondent. A number of documents were annexed to the affidavits of Ms T, including the written report by Assessments Australia. The s58 documents included copies of file notes and documents relating to the Allegation Against Employee (AAE), the JIRT investigation, and the allegations of sexual abuse of Child S and Child B by Child 1. A non-redacted version of a contact record from the respondent's file was also submitted (Exhibit R1). The DVD recording of the interview between the investigating police officer and Child S was in evidence. Copies of Policy documents were also provided. Documents relevant to the care history of Child S and Child B, and the children the subject of these proceedings, Child 1, Child 2 and Child 3, were contained in the section 58 documents. Evidence of case work records, correspondence, reports and file notes were provided in the affidavits and annexures thereto, of the case worker, Ms T.
The applicant, APS, details in his written affidavits that he wished to become a foster carer because he grew up in foster care, his experience was not positive, and he wanted to help kids like him find a safe place with people who cared. In addition, he is an Aboriginal man. He is also related to the three children in a kinship relationship, his grandmother is the sister of the maternal grandmother of the three children. The mother of the three children is his second cousin. He states that he ensures continuing contact between the children and members of their extended family. In the affidavits APS details the several training courses which he has undertaken as a carer, and attaches documentation relating to such training. He adopts the contents of parts of his wife's affidavits, being the affidavits of APT. He also details his concern for Child 1 being withdrawn in behaviour, not talking. He ensures that Child 1 sees his counsellor regularly, and currently that is twice a week. He is concerned that Child 1 has become withdrawn and depressed. They have concerns that he may attempt self-harm. APS also gives evidence about his own medical condition. He also states that at the time of the sexual abuse issues being discussed with the respondent, he offered to move residences, with Child 1, to alternative accommodation until the matters surrounding the sexual assault had been fully investigated, which would leave APT, Child 2 and Child 3 remaining in the home. He would also ensure that Child 1 is not left alone with other children in the longer term to avoid any situation of risk.
APT in written statements detailed the challenges presented in caring for the three children given their disabilities. Evidence as to functional capacity of each child and areas where support is needed are provided in the annexures to the affidavit of APT - annexed were various medical reports, school reports and functional assessments. A report of Dr Fiona McKenzie, Clinical Geneticist, of March 2007 details assessment of the three children. Dr McKenzie notes that hyperactivity and poor concentration are well recognised consequences of foetal alcohol syndrome. A report of Dr MacDonald, Paediatrician, of 21 February 2013, in respect of Child 1 states that he has a severe generalised anxiety disorder and clinical depression. She concurs with Dr MacKenzie, Staff Specialist In Clinical Genetics, whose opinion was that "foetal alcohol effect" was contributing to his cognitive, behavioural and attentional problems. Dr MacDonald states Child 1 is socially withdrawn generally and very shy, he finds it very difficult to initiate conversation and continue. His last cognitive assessment in February 2011 placed him within the borderline to mild intellectual disability range. He has a mild intellectual disability, poor working memory compared to other children of his age, and generalised anxiety disorder.
Various reports of assessments of Child 2 are annexed to the affidavit of APT. A report of 10 March 2009 by Dr Hutchings, Senior Staff Specialist, Child Development Unit, noted "apart from her foetal alcohol exposure with particular risk of hyperactivity, impulsivity and poor concentration, Child 2 also has cerebral damage in the area of the left frontoparietal Iobe, which is responsible for the development of self-regulation and executive functioning. She therefore has two extremely powerful additional biological impairments which are likely to cause severe hyperactivity." The diagnosis that she is functioning with moderate intellectual disability was also noted. She is said to present with complex developmental problems, with chronic ear problems and a divergent squint. It is also noted that as well as the developmental needs, and the multiple biological impairments, she has severe ADHD. The speech pathology review assessment report of August 2008 indicated severe receptive language delay, severe expressive language delay, and overall severe language delay. Phonological delay was also present. A behavioural management plan noted identified behaviours as including hitting and kicking, throwing objects, running away, crying and screaming. Triggers were expressed as when she cannot get her own way, when there is a change of plan or routine, and that climbing, running and absconding are all part of her normal play.
A report of 21 February 2013 by Dr MacDonald in relation to Child 3 notes he has been her patient for about five years and that there have been many reports and assessments. He has had two cognitive assessments, the first in December 2008 and the second in May 2011, which placed him in the moderate, then mild, intellectual disability range, he has also been assessed as having extremely low ability/moderate disability in relation to functional skills necessary for daily living. He does not understand language as a child of his chronological age would be expected to understand, and is easily confused and easily distressed. Psychometric testing of May 2011 indicates Child 3's verbal comprehension is extremely low, as was processing speed and receptive language. His results on verbal comprehension are in the extremely low intellectual ability range; overall on the full IQ scale his results are mild intellectual disability range. Recommendations included continuing speech pathology support.
An affidavit from Dr MacDonald of 19 April 2013, provides detail as to the children's health and also annexes the doctor's notes, her reports and a number of other medical reports and correspondence. The reports as detailed above are also annexed to her affidavit (being the report of 21 February 2013 in relation to Child 2, the report of 21 February 2013 in relation to Child 3). Dr MacDonald also gives her impressions of the applicants as caring foster parents and APT in particular impresses Dr MacDonald in her knowledge and care of the children. Dr MacDonald notes that she had previously written a letter of recommendation for adoption, in relation to the children, and she annexes the letter of recommendation to her affidavit. Dr MacDonald states that APT has always impressed her with her thoroughness and every time she sees the children, APT brings a file folder full of medical reports about that child and asks insightful questions.
Annexure F to Dr MacDonald's affidavit is her letter of support for the applicants' plan to adopt the children. The letter is in relation to Child 2 and Child 3. Dr MacDonald states in the letter that she has known the two children for around three years or more in her capacity as attending paediatrician and has been impressed with the loving care and attention to their medical problems from their foster parents (the applicants). Dr MacDonald states:
"both children have features of Foetal Alcohol Spectrum Disorder and have had behavioural and health problems that have impacted significantly within this family and the broader community. There has never been a time where there has ever been expressed to me any reluctance to continue with fostering the children and seeking appropriate medical and educational attention. I would support in the attempts by the children's foster carers to formalise the care through an adoption process."
Dr MacDonald's report of 16 August 2012, Annexure C to her affidavit, in relation to Child 1 notes that over the last several months he has been increasingly stressed by school-based violence towards him, consisting of children threatening him, swearing at him and calling him names, and he has become increasingly emotionally over-reactive, is showing signs of anxiety and depression. At home he is increasingly irritated by small things, often wears his headphones, immediately when he comes home from school goes to the toilet, shuts the door and spends at least one hour there and subsequently goes to his room. He is isolating at school and at home, and his foster parents are finding it increasingly difficult to talk to him. He is becoming also more angry and snappy with his younger siblings which is atypical for him. He is becoming increasingly anxious, demonstrating symptoms of depression and thoughts of self-harm (this was his presentation at the time of the report, in August 2012).
Dr MacDonald states that in her experience it is very difficult to access speech pathology services in their town and this has been the case for many years. Until recently only the Department of Health, through the hospital, provided speech pathology services in the region and to the best of her knowledge the service offered by the hospital was limited to assessment only, there was no assistance with therapeutic intervention. The Department of Ageing, Disability and-Home Care employs a speech pathologist in another regional town who attends their town on a biannual basis. In about early 2013 a private speech pathologist commenced operation in their town. Dr MacDonald also details in her affidavit some disputes with the evidence given by the case worker, Ms T.
The s58 documents, at page 118, record a home visit of 30 December 2011 to explain to Child S and Child B the planned placement transfer. Both girls indicated they would miss their current carer, APT and would like to write to her when they leave.
The report of the carer review by Assessments Australia, dated 31 December 2012, annexed to Ms T's affidavit, , indicates that the terms of reference for the review were
"... CSC is requesting a Carer Review for APS and APT... Authorised to become carers... in 2003.... Child 1, Child 2 and Child 3 were placed in their care on 23 of March 2005.... No further reviews have been conducted since being authorised. There is a pending AAE dated 16 December 2012 at Reportable Conduct Unit - substantiated physical discipline of Child 2"
In the report by Assessments Australia, the statements made by APS and APT to the reviewer at the interview are detailed, and included statements by APS and APT that they did not recall the Code of Conduct, they did not know what their authorisation was, nor did they recall the content of their training (as foster carers).
At the time of the review by Assessments Australia, the applicants indicated no knowledge of any pending AAE matter. Assessments Australia had been informed that there was a pending AAE but had been provided with no real detail. Assessments Australia were not satisfied that APT and APS were able to distinguish the special needs of the three children and to support those needs, and that the children's' bedrooms were sparsely furnished and without individuality. APT in her affidavit evidence stated that the children's rooms were individually decorated and attached some photographs to support this statement. The lack of provision of support from DOCS, expressed by the carers, was noted.
Assessments Australia found that APT and APS did not understand the more esoteric notions of the assessment and tended to lump all the children in together regarding behaviour and needs, finding it difficult to discern differing needs based upon age, character, gender etc
The Assessments Australia report, while noting the obvious attachment of APT and APS to the children states:
"It is unknown whether APS and APT simply do not understand the nuances and specific needs of these children or simply are not committed to the best possible outcomes for the children. Their lack of engagement with early intervention, their lack of regiment with ADHC and their lack of engagement with service generally indicates a poor understanding of their role and the needs of these specific children."
Amongst the recommendations made is a recommendation specifically for assessment of APS and APT (this recommendation is made separately in the report to recommendations in relation to the children):
"It is recommended that APS and APT be immediately referred to DADHC by Community Services with an urgent request for services including full cognitive and health review".
The recommendations also note the need for review of the authorisation in 12 months to ensure, amongst other matters, that APT and APS are fully engaged with services and deliver quality care that acknowledges the individual needs of each child.
In her affidavit evidence APT details the difficulties which she found with this interview process and notes that while she could not remember all aspects of the placement plan she did have knowledge of her obligations. She also states in affidavit evidence that the interview process was difficult as the interviewer used a lot of unfamiliar words.
APT also spoke about the sexualised behaviour of other children for whom they had short term care (it appears to the tribunal that she was referring to either Child S or Child B):
"The most challenging for APS would be trying to get some of the young girls we have had in our care especially the last one she was sexually active and she was only eight and we never got told anything they just gave us the kid and said thank you and goodbye. They never told us anything. For me what was particularly challenging was I just know to do, so I just rang DOCS and asked them to have a talk to that girl, that worked
Those sexual behaviours that was also one of for me not just for APS. That was a real shock not just for us it was a shock for Child 1 as well as he didn't know what to do, we talked to him. Child 1 was the one who told us about the sex, they were all playing and he came out to the lounge room and said what do I do she turned around and told me to pick her up and fuck her. We said who what when? Then he wouldn't have anything to do with her. We rang DOCS and they talked to them and they removed them. They had been been here for three months and it [referring to the sexualised behaviour] just came out from the blue we hadn't seen this in them before, we never got told anything about these children."
APS said
There was another child here he was my nephew we had him in care and he flogged APT with a golf stick and threatened the three kids with knives [The interview record goes on to further discuss this incident, which APT and APS state they reported to DoCS and requested removal of the child, they state DoCS wanted them to keep him. In the interview they are questioned about the impact of the incident on the three children, and their support of the children after the incident].
In relation to the conversation between Child 1 and one of the girls, as detailed in the Assessment Australia interview, APT gave other accounts in other written statements and her oral evidences. In her affidavit she stated that on Sunday in late November 2011, Child 1 came into the lounge room very distressed, and seemed ready to cry. He told her that Child S "asked me to pick her up, hug her and fuck her". APT states she said "what?". She states she then had a conversation with Child S. In her statement to police, made on 14 February 2013, she states :
"on one occasion I heard Child S said to Child 1 "pick me up and fuck me". I reported this to DoCS at the time. I remember the case worker telling me "weren't you told about the children" I took this to mean that the two girls had been abused or exposed to something in their past. I said to the case worker "no, but I guess you have just told me". On another occasion I saw Child 1's cousin, Child A, I think he is 15 or 16 now, in the girl's bedroom. Child A was lying on the bed with Child B. This was about 8:30am in the morning, both were fully clothed but it seemed unusual and bit suspicious so I reported this to DoCS also. At no time did any of the children come to me and tell me that any abuse was occurring....Also it follows that Child 1 was never punished or grounded for abusing the girls as I never knew that anything had happened. The reason we stopped caring for the girls in the end was because we didn't know anything about these girls and because of what Child S said to Child 1".
In her oral evidence at the hearing she said she could overhear the words said by Child S to Child 1 from where she was in the house and was firm in her evidence that she overheard Child S say to Child 1 the words "pick me up and fuck me". When the differences in her account were put to her she said she was shocked at hearing the words and maintained that she overheard the words said by Child S. It was put to her that her affidavit of 18 March 2013 read as if she was surprised, saying "what?" when Child 1 reported the words of Child S to her. However, APT maintained that she overheard the words as was stated in her police statement. The tribunal notes that in the account detailed in the Assessments Australia report APT is also quoted as advising that Child 1 came to the lounge room and told them the words said by Child S, and "We said who, what, when" - The tribunal considers that this also reads as an expression of surprise when told of the words by Child 1, and is not consistent with her evidence that she overheard the words being said.
In the interview with Assessments Australia APT says that she reported the incident to Community Services by telephone and they came and spoke to the girls and that was good. In her oral evidence she stated that she went in person to the office of Community Services and spoke in person with Ms IH. In her statement to police she states that she reported it. She gave oral evidence that she had also reported in person to Ms IH at the office that Child S was staring at Child 1 and following him around. The evidence of Ms T was that Ms IH left the employ of DoCS in August 2012, and that her departure was not for any reason of poor performance but was because she pursued alternative employment/business opportunity.
APS in his written statement attributes the sexualised statement to the Child S, but in his oral evidence to the tribunal at the hearing he was clear that it was Child B who said the words. He also stated that the applicants went in person to advise the Department of the incident. APT says that they were told the girls could not be moved because it was so close to Christmas.
APT was questioned about her evidence that they were never told about the girls having sexualised behaviour. APT was firm in her evidence that if she had been so advised she would have refused to have taken the girls because of the potential negative impact on the other children in her care given their disabilities and special needs. APT was cross examined about a file note at page 2 of the section 58 documents. This was a file note of a home visit by case workers, on 12 September 2011 when Child B and Child S were placed with the applicants on a short-term basis. The case workers record in the file note that they:
"spoke with APS and APT about some of the girls current behaviours including some behaviour that the previous carers thought was not age-appropriate (sexualised in nature).[the supervisor] directed this conversation to occur, however it was reinforced with carers that this behaviour is most likely age appropriate. APT and APS demonstrated a good understanding of age appropriate behaviour and the impact of trauma on children in care".
The tribunal considers that this file note reads that the case workers had this conversation because the supervisor directed them to do so. The respondent relied upon this record as indicating that the applicants were advised that the girls displayed sexualised behaviours. However a reading of the file note appears to the tribunal to be minimising the girls' behaviour as age-appropriate. The case workers formed the view that the applicants demonstrated a good understanding of age appropriate behaviour and impact of trauma on children in care. The applicants state that they were never advised of the children's sexualised behaviours.
In her oral evidence, in relation to the Child A, being the older boy cousin, APT stated that he was sitting on the bed dressed only in his boxer shorts and this was what she thought was strange and so she reported it. This was inconsistent with her statement to police that he was fully clothed and lying on the bed. The inconsistency between her statement to police and her oral evidence was put to her and APT maintained her account given in oral evidence that Child A was sitting on the bed in his boxers. APT states she reported this incident to Community Services, there is no record of this in Community Services files/records.
A Contact Record was in evidence (Exhibit R1) and it was contended that this was in relation to the same child who would have sleep overs at the home of the applicants (an older child, a male cousin, Child A). The Contact Record states:
The caller was approached by another student a couple of weeks ago (caller could not remember the date) . [An older sibling of child 1 ] came to class on the Friday and was very upset saying things with words to the effect "They are going to take my brother away". He also stated that he could not be in class with Child A... If he saw Child A he would kill him. [The caller details a discussion with the older sibling about whether Child A was going to be returning to school, and that the older sibling said he knew why Child A would not be coming back and said that Child A -] "played with" two young girls..... Child A told him he had played with two young girls, happened a few years ago. [The older sibling] had not told anyone as he was in shock. It took him a couple of days to tell Child 1's foster carer, APT, but she did not believe him. Stated a couple of years ago at a sleepover at APT's house... Child A kept leaving the room for periods of time, once Child A was gone for a long time and [older sibling] went to find him.... Found Child A in bed with one of the young girls in the placement.... Stated that Child 1 was blamed for it. When the other foster children were in the placement left to another placement, they blamed Child 1 for what Child A had done. The new carers then told APT who then blamed Child 1 for the sexual abuse"
APT told the tribunal that the older sibling did not report this to her until recently. When asked whether she did anything in response to being so told, APT stated that it occurred after the meeting with DoCS , (the meeting prior to the letter of 1 March 2013). APT was clear that she had this conversation with the older sibling in the last couple of months.
The Secondary Assessment in the section 58 documents, dated 18 March 2013, indicates that Community Services found that serious concerns were raised about the carers' capacity to be protective given the recent substantiated JIRT investigation and the further disclosures by Child 2 of "roping the door". Given these concerns, issues raised in the recent Assessments Australia review, and an outstanding AAE from February 2012 [ the supervisor] was consulted and a placement change occurred for both Child 2 and Child 3 to ensure their safety, welfare and well-being. It was found there is a risk of serious harm to the children (Child 2 and Child 3) over the immediate assessment period due to access to Child 1 and concerns that the carers are not protective. As a result the only sufficient safety option was to change the placement of Child 2 and Child 3 immediately. The perceived risk was a risk of sexual harm/injury, the harm consequence was extreme and the probability assessed as highly likely.
Concerns are also expressed in the Secondary Assessment Stage 2, of 18 March 2013, as to the position of Child 1 due to the lack of supports outside the home available to him.
The evidence about the sexual assault allegation
The allegations of sexual abuse were made initially by Child B, and later during a police interview by Child S. As noted above, Child B and Child S are siblings. An order for removal was made on 25 March 2011 for both Child S and Child B, and since coming into care the children have been in four placements. The second placement was from 29 July 2011 to 8 September 2011, when the then carers advised they wanted Child S to be moved to another placement, because she was found to be touching a two-year-old girl, who was related to the carers, inappropriately. Both Child S and Child B were removed from the placement. The third placement was with APT and APS, where it was subsequently alleged that the sexual abuse by Child 1 occurred.
When Child B was interviewed she refused to allow JIRT to record or videotape the interview. Notes were made of the interview by the JIRT Caseworker and are contained in the s 58 documents. Child B alleged that Child 1 told her to do a whole lot of rude stuff, that he was APT's son, that the people who lived in the home included APT, Child 1, Child 2, Child 3, and APT's husband, and that she lived there with Child S. Child B stated that Child 1 did it to Child S as well. Child B said she told APT what happened and APT grounded Child 1. She stated Child 1 carried her to his room and made her do heaps of rude stuff, made her suck his rude part, even in the toilet, heaps of times, about 20 times. He would come into her room in the morning and start doing it, when asked what he would do, she stated he would put his rude part into her bottom, it felt funny, no one saw this. When asked for the name of the rude part she would not say the word but would only spell it "Dick". Child B stated that Child S liked it at APT's place. She was asked whether anything like this happened to Child S and said Yes.
Child S told the police officer in the record interview that Child 1 came into her room, went on her bed, pulled his pants down. She said he went on to her, he laid on her, he was on top of her, he pulled his pants down, just down a little bit, and said "do you Wanna have S-E-X [spelt out]" and she said no. She said he didn't listen, he tried to do it, she said no. When asked what he tried to do she said he tried to pull her pants down and she was hanging on to them. She said (the first occasion) he got up and pulled his pants up because APT was coming. It happened on two occasions; she said that her sister, Child B and Child 2 were there when it happened the first time. On the second occasion Child 3 was there. She stated that Child 3 told APT that Child 1 was in the girls' room. And APT told Child 1 to go to his room for "timeout all weekend". Child S also states she told APT and APS about both occasions. She says that they said that Child 1 can spend the time in his room, for two whole weeks.
The children, Child 2 and Child 3 were also interviewed by Community Services officers and by police. A reading of the notes of the interviews, at pages 63 - 75 of the section 58 documents, shows unclear accounts by Child 2 and Child 3. The legal representative for the respondent in the hearing conceded that the transcripts of these interviews did not meaningfully corroborate the accounts of Child S and Child B. The police found that the children were unable to be interviewed as witnesses because they had said yes to all questions indiscriminately. The police also found that Child S and Child B did not adequately display a satisfactory understanding of truth and lies. Police decided not to proceed with a criminal prosecution, and the case was suspended, however JIRT decided that the complaint of sexual abuse was substantiated.
The JIRT investigation decided that the accounts of Child 2 and Child 3 supported that sexual abuse had occurred. In the interview Child 2 is recorded as stating "he didn't come home, go back Child S wake up. Child 1 told go bed....." She was asked "was Child S out of bed?" And is recorded as answering "yes". "Child 1 brings back". She is asked "did Child 1 bring Child S back?" "Yes" "how many times did this happen" "twice". The interviewer goes on to ask Child 2 who Child 1 brought back and she answered Child S but not Child B, Child B was just asleep. When asked if APT and APS knew that Child 1 had bought Child S back to her room, Child 2 is recorded as answering "yes". When asked what APT and APS did she said "she goes to bed". When asked what Child S was wearing, Child 2 and said "pyjamas and get dressed". When asked "did anyone else come into your room at night time?" Child 2 responded "mum rope the door." When asked "what did mum do the door?". Child to states "mum shut the door and talk to Child S and Child B". She was asked "was this before or after Child 1 carried Child S back to the room?" She said "after".
The section 58 documents contain a document from the JIRT, being a record type "Judgements and Decisions" of 18 March 2013 (page 198). This document indicates that Child 1 has been found to be a Person Causing Harm. The record details that JIRT have assessed, on gathered information, that it is more likely than not that Child 1 sexually abused Child S when she was in the care of APT and APS. The evidence relied upon to establish this was stated to be the JIRT interview of Child S and Child B, and the interview of Child 2 by Community Services. The record also states that JIRT CS are of the opinion that APT, the carer of Child S at the time of the abuse, was aware of the sexual abuse taking place in the home. The documents relied upon to form the opinion that APT was aware of the abuse were stated to be the interview with Child S, the interview with Child B, the interview with Child 2. JIRT also found that Child 1 was a person causing harm in respect of Child B, finding the sexual abuse allegations substantiated.
Ms T gave evidence that, if the outcome of the AAE investigation is that the carers are recommended to remain as the children's carers, then there would need to be a specialised risk assessment undertaken. She stated that the current placement of Child 2 and Child 3 is temporary and based on the paramount consideration for their safety and welfare.
Discussion of evidence
The central issue in the case is the finding by Community Services that the allegation that Child 1 sexually abused Child S and Child B, is substantiated. This finding led to the decision to remove Child 2 and Child 3 from the applicants' care. Other important considerations include that prior to the decision to remove Child 2 and Child 3, three siblings had resided together - those siblings have now been separated as Child 1 continues to reside with APT and APS, and Child 2 and Child 3 reside elsewhere. The removal of Child 2 and Child 3 from the care of the applicants has also seen removal of these two children from a placement which has been a long term stable placement since the children were of young age. The disruption to such well-established care arrangements, and the separation of the siblings, are serious and significant matters which the tribunal must carefully consider.
This is particularly so in a case where the evidence of the alleged sexual abuse is problematic. In the present case both alleged victims have had difficult prior placements in care, Child B has been alleged to have acted sexually inappropriately, touching the private parts of a two-year-old girl in a previous placement. Child S is alleged to have a blank stare, to express sexualised behaviour, and is also developmentally delayed. The section 58 documents clearly evidence a history suggestive of sexual abuse and neglect for both girls. The applicant's legal representative submitted that the evidence of both girls was unreliable and that the tribunal could not exclude the possibility that there was mis-identification - that the two girls were misidentifying Child 1 in relation to their memories of sexual abuse by someone other than Child 1.
The issue is further complicated by the fact that JIRT Community Services, in finding the allegation of abuse to be substantiated, relied on a statement made in the interview with Child 2. As detailed above, the interview with Child 2 does not clearly indicate any corroborative account in relation to the allegations of sexual abuse. The tribunal notes this was also conceded by the legal representative for the respondent in the proceedings.
Another complication is the Contact Record by a caller advising that an older sibling of Child 1 alleged that Child A had sexually abused the girls in the placement (suggestive of Child S and Child B). A further issue of concern in relation to this Contact Record is that the older sibling of Child 1 is said to have reported this to APT and she is reported to have blamed Child 1. There is no record of APT also contacting Community Services in relation to the report said to have been made to her. APT gave evidence to police, and in the tribunal hearing, that she observed Child A in the bedroom of Child S and she thought it was strange and reported it. But there is no record of the report in the respondent's file. Further, in her statement to police, APT states that Child A was fully clothed and lying on the bed, yet in her oral evidence to the tribunal she stated he was dressed only in his boxers and sitting on the bed. This inconsistency in the evidence of APT is puzzling in the context of the evidence overall.
A further complication is that when the allegations came to light, when Child B was overheard talking to another child about her experience of sexual abuse in a prior placement, Child B referred to a 12-year-old child MMM. Child 1 is 12 years old but his name is not MMM. Child B and Child S did reside in a placement where there was a MMM, however this child was of five years of age at the time of the placement, and Child B clearly reported abuse by a 12 year old. In the tribunal's view the naming of the alleged abuser as MMM complicates the overall factual evidence. However, the tribunal notes that this was known to JIRT Community Services, and the tribunal also considers that Child S and Child B clearly named Child 1 to investigators and provided other detail which identified Child 1 (for example, where he lived, who he lived with, that APT was his mother).
Separately to the complications as detailed above, there is the record of interview by Child S, the DVD recording of the interview was played in the hearing. The applicant's solicitor submits that the child's presentation in the interview would cause the tribunal concern, she was twirling her hair and swinging her legs. The tribunal did not perceive the presentation of the child to be unusual, where a child is being interviewed by an adult about a serious matter, or to signal concerns about whether her account was fabricated. The tribunal finds it significant that both Child S and Child B are recorded as clearly stating the name of the person who did the sexual abuse, naming Child 1. Further, both children clearly named and identified the people residing in the home with Child 1, and a fondness for APT was indicated. The allegations arose some 12 months after the departure of Child S and Child B from the home of APT and APS. The evidence indicates there was no animosity held by the girls towards APT or the household at the time of the departure nor afterward. Given that the girls were very clear in identifying Child 1, and the household members with whom he lived, in their interviews, then the tribunal has to give some weight to the girls' accounts. This is notwithstanding the fact that both girls have probably been subject to prior abuse and may at times display inappropriate and sexualised behaviour.
In this matter APT gave detailed evidence in oral and written form. The written evidence was clear however APT's oral evidence was not so clear and consistent - she found it difficult to recall a number of matters, and on some issues, including important issues in the current matter, inconsistent evidence was given. These inconsistencies are detailed above. The tribunal was not of the view that APT was evasive or untruthful, but was concerned about the reliability of her evidence given these inconsistencies.
Similarly the evidence of APS was inconsistent on a major issue. He stated in his written evidence that the sexual comment was made by Child S to Child 1 but in his oral evidence maintained it was said by Child B. There were also inconsistencies between the evidence of APT and APS - APT says she overheard the comment whereas APS was clear that Child 1 came and told them about the comment. APT was also firm in her evidence that there was no opportunity for such sexual abuse by Child 1 because the applicants are awake all night every night because of Child 2's sleeping patterns. Her evidence was that she and APS would sit up together watching television and supporting Child 2 when she could not sleep. Usually one of them (APT or APS) would sit up while the other may have a few hours sleep. She would not concede that there may be hours where both were able to sleep. By contrast, APS readily conceded that they would get some sleep when they could, but would leave their bedroom door ajar so they could readily respond to Child 2 during the night.
The evidence of APT did not correlate with the file records of the respondent. Whilst file records can be incomplete and have omissions, the tribunal considers that is unusual that more than one detailed conversations asserting issues of harm and/or risk which APT said she had with an officer of the respondent, Ms IH, where not recorded.
In relation to the allegations of sexual abuse, the investigation by those experienced to investigate such complaints (JIRT) found the allegations to be substantiated. For reasons detailed above it was considered that the allegations should not be further prosecuted. The difficulty in this matter is the age and cognitive skills of the witnesses upon whom the finding of substantiation of the allegation is based. Child S and Child B are very young and in the police officers view did not adequately demonstrate an understanding of the distinction between truth and lies. In relation to Child 2 and Child 3, the police officer found that the evidence could not be relied upon as they answered yes to all questions. Other evidence before the tribunal indicates that both Child 2 and Child 3 are cognitively impaired.
As such a decision was made not to prosecute the allegations or charge Child 1. However, whilst a decision was made not to prosecute the JIRT also found the allegation substantiated.
The tribunal observes that both Child B and Child S clearly identified Child 1 - describing all the people who lived in the placement by correct names, including Child 1, and further identifying him as the child of APT. This was despite it being some 12 months since they had resided there. The DVD recording of the police interview with Child S did not cause the tribunal to have concerns as to fabrication. Further there was no evidence of a motive to cause Child 1 or APT harm as the evidence indicates that Child B and Child S were sad to leave the placement as they liked APT and wanted to write to her after leaving. As such the tribunal finds that there was evidence before the respondent that Child 1 had sexually abused Child S and Child B.
The respondent's witness, Ms T, was in the tribunal's view often defensive in giving her evidence, and her resistance to conceding reasonable points, and to answering questions responsively, indicated a potential lack of objectivity. As such her evidence was viewed less positively by the tribunal. However, the tribunal did not find that Ms T gave false, misleading or inaccurate evidence. Nor was her evidence as to the decision making of departmental officers, and her evidence about the respondent's file and records, unreliable. While the tribunal was not impressed with her manner of giving evidence, the tribunal does not reject her evidence as the tribunal was not satisfied that it lacked credibility. Her evidence was consistent with documentary evidence.
In relation to current care of the children, much evidence was given by Ms T as to the progress of Child 2 and Child 3 in the current placement. The suggestion in the evidence of Ms T that the applicants did not support the children's education, special needs services such as speech therapy, and other activities, is strongly denied by the applicants who provide detailed evidence about their support of Child 2 and Child 3 in this regard. There was considerable evidence in the affidavit of the case manager, Ms T, and the affidavits of the applicants, about daily care of the children, and provision of support to the children in their education and extracurricular activities, and to meet medical needs. There was a suggestion that the children were not familiar with fresh vegetables in the statement of Ms T, and APT has responded providing evidence of good dietary practices instituted when she had care of the children, supported by photographs taken previously. The affidavits of Ms T indicate that the children, Child 2 and Child 3, are doing well in their current placement. It is suggested that they are better supported at school than previously and the applicants give evidence of the support they provided.
The tribunal finds that the evidence in relation to the daily care issues does not indicate a clear position - the respondent has suggested certain matters and the applicants have contested the respondent's evidence. The tribunal has no real basis for not accepting the evidence of the applicants that the children participated in Aboriginal culture, and speech therapy, and their medical needs were attended to appropriately, particularly given supporting documentation including from the treating paediatrician.
Assessments Australia placed some weight on the perceived lack of knowledge of APT of the medical needs of Child 2 in relation to management of shunts which were reportedly inserted in her brain following surgery at a young age to drain an abscess. Both APT and the treating paediatrician were of the understanding that such shunts had been inserted. Prior to these proceedings it was clarified with the surgeon who had conducted the procedure to treat the abscess in Child 2, that no shunt was in fact inserted. The tribunal notes the evidence of Dr MacDonald as to APT's knowledge, care and diligence in relation to the children's health needs, and has no basis for finding that the children's health needs were neglected while in the care of APT and APS.
The tribunal notes the evidence of Ms T that the children are being provided with visits to their biological father and grandmother and other extended family members including aunties. The applicants' evidence was that over the years there has been continuing contact with members of the birth family and APS is himself a relative of the children. The tribunal has no basis for finding that the children were denied experience of Aboriginal culture while residing with the applicants, nor is it established on the evidence that in the current placement, Child 2 and Child 3 are restricted in experiencing Aboriginal culture, given evidence of contact with extended family members.
Given the findings made by the tribunal in relation to risk of harm, detailed below, the tribunal does not have to determine the issues relating to support of the children's education, health, and extracurricular needs in determining the current matter.
The evidence does raise questions about the understanding of APT and APS of the complex needs of the children in their care, being Child 1, (and previously Child 2 and Child 3). In this respect the tribunal notes the findings of the review conducted by Assessments Australia. In particular that assessment recommended a full cognitive and medical review of the applicants, amongst other recommendations. The tribunal did note that APT, whilst giving oral evidence, seemed at times overwhelmed by written documents placed in front of her. This may well have been due to the stress of the proceedings and the emotion which she undoubtedly feels over the removal of the children after so many years in her care.
There was a certain simplicity to the evidence of APT that she just loves children and her statements to Assessments Australia that if she won lotto she would buy a hotel and fill it with foster children and animals.
On the evidence the tribunal has no doubt that the applicants have been, and continue to be, committed to caring for the three children. That this is so is supported by the evidence of Dr MacDonald, and also the attachment to the children observed by Assessments Australia.
If the applicants' account that the girls (Child S and Child B) exhibited sexualised behaviour is accepted, then it is of concern to the tribunal that the applicants did not arrange support for Child 1 when he was confronted with sexualised behaviour, thereby helping to support him in this situation. He was a child approaching adolescence who is cognitively impaired and suffers depression and anxiety. The Tribunal has concerns for the position of Child 1 - he has been found to be a person causing harm to children. Because of this he is unable to be placed in a placement with other children. His reported depression and anxiety predates the sexual abuse allegations - the evidence, as detailed above, indicates he was experiencing depression prior to these events, because of bullying at school. At that time there were concerns that he might self-harm. Child 1 was only 12 years of age at the time that the alleged abuse is said to have occurred, is himself intellectually disabled and impaired by symptoms of mental illness with risk of harm to self. He has high needs for protection and support and in the tribunal's view it is very important that the respondent, and the applicants as current carers for Child 1, ensure that these are being met.
Findings and Conclusions
The tribunal's role is to make the correct and preferable decision on the material before the tribunal. The tribunal's function must be exercised in accordance with the principle in section 9 (1) of the Care Act
(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
In deciding what is the correct and preferable decision, on the material before the tribunal, the tribunal must have regard to the safety, welfare and well-being of the children subject of the decision, as the paramount concern. In the context of the evidence in the current matter, the tribunal is required to make an assessment of risk. In ensuring the safety, welfare and well-being of the children, the tribunal must assess whether there is an risk of harm if the children are returned to the care of the applicants, on the evidence in this matter. If the tribunal finds that returning the children to the applicants would expose the children to an unacceptable risk of harm, such an outcome would not ensure the safety, welfare and well-being of the children.
There are outstanding matters referred to the Reportable Conduct Unit (AAE) which are pending investigation. These include the verbal abuse allegation made by Child 1 in February 2012, the allegation of roping the door of February 2013 which arose during an interview with Child 2, and the allegations of physical abuse (being hit with a broom - Child 1 in February 2012 and Child 2 in an interview on 16 February 2012)
Those matters are still awaiting investigation by the Reportable Conduct Unit. The applicants deny that these incidents occurred. The applicants have submitted evidence to support that denial, for example, in her third affidavit APT annexes copies of photographs to support her evidence that it is not possible to rope the doors shut.
The Tribunal finds in respect of these matters that they are denied by the applicants but are pending investigation by the respondent. Whilst it is important that such matters are investigated, it is clear to the tribunal on the evidence in this matter, that the primary reason for removal of Child 2 and Child 3 was to ensure their safety given the perceived risk to the children due to the allegation of sexual abuse of Child S and Child B by Child 1. The parties focused on this matter in the hearing and the tribunal must consider the evidence relating to this issue.
The applicant's legal representative submitted that the evidence supporting the allegations of sexual abuse was so implausible, so lacking in substance, and so unclear, that this must lead the tribunal to conclude that there is no risk with the three children remaining in the care of the applicants. The applicants' representative asserted that there was a risk of misidentification by Child S and Child B of the perpetrator. While this is always a possibility with vulnerable children especially where the evidence suggests a history of sexual abuse, the tenor of the interviews with Child S and Child B did not suggest this.
The tribunal's role is not to investigate the allegations but to decide on the evidence in this matter whether the decision of the respondent to remove Child 2 and Child 3 because of risk, is the correct and preferable decision. The allegations were investigated and a conclusion was formed by the JIRT after that investigation. The tribunal must consider that the investigators were a specialised body (JIRT) and were in a position to form a view on the evidence before them.
As set out above there was evidence before the respondent that Child 1 had sexually abused Child S and Child B. Given this evidence, there was evidence before the respondent of risk to Child 2 and Child 3 if they continued to reside with the applicants.
An issue in this case was the perceived lack of protective capacity of the applicants. This was in part based on a view that the applicants knew of the sexual abuse, a view based on the statements of Child S and Child B, and also of Child 2, including the statement by Child 2 that the bedroom door was roped. These matters are denied by the applicants.
The tribunal could not be satisfied on the evidence that APT and APS knew of the sexual abuse occurring, although the tribunal has significant concerns that they were not sufficiently protective. If indeed the statements made by Child S to Child 1 did occur, and were reported by Child 1 to APT and APS as they state, then the tribunal considers that more protective behaviour should have been undertaken by the applicants. Whilst the applicants say they told Community Services about the statements and repeatedly requested that Community Services move the children (Child S and Child B), the applicants give no evidence of any other actions taken by them to protect and support Child 1 and the other children in their care.
There is no record of reports being made by the applicants to Community Services about the sexualised behaviour. The respondent contends that there were no reports made by the applicants of the sexualised behaviour of Child S and Child B or the sexual comment allegedly made by Child S to Child 1 - the respondent maintains that it is improbable such important reports were repeatedly not recorded when made by the applicants. Whilst the tribunal accepts that there can be failure in departmental officers to record all contacts and make all appropriate file notes, the tribunal considers that it is improbable that the contacts/reports about sexualised behaviour by children, which the applicants state they made, are repeatedly not recorded. There is no record of repeated requests by APT that Child S and Child B be moved for reason of the sexualised behaviour. The tribunal therefore finds it improbable that the applicant's reports/contacts with the respondent about Child S and Child B were not recorded, and as such it is difficult to conclude that the applicants did contact Community Services about the behaviour of Child S and Child B
For the tribunal to conclude that the reports/contacts were made by the applicants, the tribunal would be required to do so on the basis of the applicants' evidence alone (in the absence of any documented note in the respondent's file). The tribunal cannot find that the reports occurred on the basis of the applicants' evidence alone, given the tribunal's finding that the applicants' evidence is not reliable. As discussed above the tribunal finds given significant inconsistencies in the evidence of APT and APS that their evidence is not reliable. The tribunal noted the confusion of APT in the witness box on occasion, and the recommendation for cognitive assessment by Assessments Australia, which may be an explanation for the unreliability. However there is no evidence as to cognitive skills of APT which would permit the tribunal to form such a conclusion. The tribunal must find the evidence of the applicants to be unreliable given inconsistencies in their evidence on important matters.
The failure to report the concerning behaviour of Child S and Child B is, in the tribunal's view, a failure to demonstrate protective capacity to ensure the well-being of the children in their care. It is this evidence of a lack of protective capacity which causes the tribunal most concern in considering what is the correct and preferable decision in the current matter.
Given the tribunal's finding that there was a basis for accepting the evidence of Child B and Child S, despite the difficulties in the evidence as detailed above, then the tribunal must accept that there is evidence indicating that the abuse occurred. Given the evidence suggestive of a lack of protective behaviours by the applicants, then the tribunal had concerns that if Child 2 and Child 3 continued to reside with the applicants, the applicants may not be able to protect all three children. That being so, then the tribunal, having regard to the paramount consideration of the safety and welfare of Child 1, Child 2, and Child 3, finds that the correct and preferable decision is that Child 2 and Child 3 remain in an alternative placement and not be returned to the applicants at this time. In so deciding the tribunal has carefully considered that this outcome maintains the separation of Child 1 from his siblings, and disruption of long term stable care arrangements.
As the tribunal cannot be satisfied of the protective capacity of the applicants, and as there is evidence supporting a conclusion that there is a risk to Child 2 and Child 3 in residing with Child 1 and the applicants, given the finding of JIRT that Child 1 sexually abused Child S and Child B, then the tribunal cannot be satisfied that the welfare, safety and well-being of Child 2 and Child 3 will be met if Child 2 and Child 3 are returned to the care of the applicants. Therefore the tribunal finds that the correct and preferable decision, according to the law and on the evidence before the tribunal, is that the decision of the respondent be affirmed.
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Amendments
19 June 2013 - further anonymisation
Amended paragraphs: 55 & 77
Decision last updated: 19 June 2013
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