BP v Minister for Community Services

[2007] NSWADT 184

CITATION:	BP and anor v Minister for Community Services [2007] NSWADT 184
DIVISION:	Community Services Division
PARTIES:	APPLICANTS BP and BQ RESPONDENT Minister for Community Services JOINED PARTY BR
FILE NUMBER:	074008
HEARING DATES:	18 and 20 June 2007
SUBMISSIONS CLOSED:	20 June 2007
EXTEMPORE DECISION DATE:	25 June 2007
DATE OF DECISION:	16 August 2007
BEFORE:	Smyth M - Judicial Member; Moss J - Non Judical Member; Norman C - Non Judicial Member
CATCHWORDS:	Removal of children from authorised carer
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	APPLICANTS K Renshall, solicitor RESPONDENT G Moore, barrister JOINED PARTY K Rowley, solicitor
ORDERS:	The decision to remove the Child BR from Applicant’s care is set aside. The Child BR is to be returned to the Applicants by close of business on 26 June 2007.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 Because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicants or the children involved in this matter. We refer to the Applicants as Mr BQ and Ms BP and child who was the subject of the review as child BR. The child’s nine year old sister is referred to as Sister 1 and her ten year old sister as Sister 2.

2 By application, dated 19 March 2007, Ms BP sought a review of the decision of a delegate of the Minister for Community Services to remove a five year old child [Child BR] from her care and lodged an application for a stay of that decision. That stay application came before the Tribunal on 23 March 2007. Her husband, also a foster carer for the child, filed an application with the leave of the Tribunal for a stay of the decision on that day.

3 The stay application was dismissed by the Tribunal on 23 March 2007. An important factor in that decision was that there had been allegations that the Applicants had physically abused the child BR and her sisters and an investigation had not been completed into those allegations.

4 The child BR was joined as a party. At the time the hearing commenced Mr BQ has not signed the application for review of the decision to remove the child. The Tribunal accepted that Mr BQ thought that by filling out a form for a stay application he had also lodged an application for review. He was joined as a party to the review application.

5 The Applicants, the Minister and the child all had legal representation at the hearing. The Tribunal’s task in hearing and determining this matter was greatly assisted by all three representatives.

6 The Applicants and the child BR’s legal representatives submitted that it was in the child BR’s best interests to be returned to the Applicants. The Minister submitted that the decision to remove the child was correct and preferable and that the application should be dismissed.

7 On 25 June 2007 the Tribunal set aside the decision to remove the Child BR and gave oral reasons for that decision. We now provide written reasons for the decision following a request by one of the parties.

Jurisdiction

8 It is not in issue that the decision to remove the child from the daily care and control of the Applicants is reviewable by the Tribunal. [Section 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 [Care and Protection Act] read in conjunction with s. 38 of the Administrative Decisions Tribunal Act 1997 [Tribunal Act] and s. 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993].

9 In making our decision, we are instructed to give paramount consideration to the safety, welfare and well-being of the child [s 9(a) of the Care and Protection Act].

10 In conducting this review we stand in the shoes of the Administrator and make 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 decision as well as any further material that is relevant as at the time of the hearing. [YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]]

11 On review, we may decide to affirm the decision, vary the decision, set aside the decision and make a decision in substitution for it or set it aside and remit it back to the Administrator for reconsideration. [s. 63(3) of the Tribunal Act]

The evidence

12 In evidence before us we had affidavits from the Applicants and both gave oral evidence. The Tribunal had the benefit of a report from a clinical psychologist Ms Single, dated 10 May 2007 and her oral evidence. Staff of the Department of Community Services including Elizabeth Cox, an acting Case Work Manager, Leila Delaney, a Child Protection Case Work specialist, Debra Girdlestone, a case worker and Megan Robb, a psychologist all provided affidavits. There was also a folder of documents the Minister described as relevant documents from the Applicant’s foster care files, the file of the child BR and the files of her two sisters.

Background

13 The Minister for Community Services has parental responsibility for the child BR and she was placed in the care of the Applicants on 16 July 2004 when she was two and a half. Her two older sisters, Sister 1 now aged 9 and Sister 2 now aged 10, were also placed with the Applicants at the same time. This was the Applicants first full time placement as foster carers.

14 The Applicants’ household consists of Mr BQ and Mrs BP and their twenty year old daughter who is a university student.

15 On 20 October 2006, Sister 2 left the care of the Applicants. On 3 March 2007 Sister 1 ran away and refused to return to her placement with the Applicants. She was then placed with another foster carer. On 19 March 2007 the child BR, the subject of this application, was removed from the Applicant’s care and placed with the same carer as her Sister 1. Sister 1 absconded from her new placement on 11 May 2007, refused to return and is now in another placement. The child BR remained in that placement. That placement was her carer’s first full time placement and her carer has told the Department that she does not feel able to continue caring for the child. Consequently at the time of the hearing the child BR, the subject of this application, required a new placement.

16 The Minister submitted that all things being equal siblings should reside together. The Minister recognised that there are occasions where it was not appropriate to place siblings together. The Minister accepted that, at present, it would not be appropriate for the Child BR to reside with one of her siblings and that is not disputed by the parties. At the time of the hearing the Minister intended to move the child BR to a new placement, separate from her sisters, in the same town as her Sister 2 and in close proximity to her Sister, 1. That town is a 40 minute drive from the Applicant’s residence.

17 The Minister submitted that the proposed placement would foster the relationship between the sisters, and that a long term goal was for the child BR to reside with either of her sisters.

Reasons for the removal of the child BR

18 On 21 February 2007 the Department of Community Services received a report alleging that the child BR was being smacked by her carers. On 28 February 2007, the child BR and her Sister 2 were interviewed by departmental officers. Transcripts of these interviews were in evidence before the Tribunal.

19 In her affidavit of 7 June 2007, Ms Cox, the Acting Casework Manager, set out the reasons for removing the child BR from the Applicants. In summary these were:

the abuse in care allegations disclosed by the child BR and Sister 2;

Sister 1’s refusal to return to the Applicants care and her disclosure of allegations of abuse in care;

Sister 2’s refusal to return to the Applicants’ care and her disclosure of allegations of abuse in care;

the history of disruptive behaviour of Sister 1 and Sister 2 escalating while in the care of the Applicants;

an indication that Sister 2’s behaviours were improving in her new placement and at school;

a history of the Applicants not displaying a capacity to meet or manage the challenging behaviour of the Child 2 or Child 3

grave concern about the Child BR’s behaviour escalating as she got older for the reasons set out in the affidavit of Ms Cox and the Applicant’s history of not being able to manage these behavioural problems;

the identification of a placement that enabled the Child BR and her Sister 1 to be together and

a strong departmental policy and belief that siblings should be placed in foster care together wherever appropriate and possible.

20 The Minister submitted that the Department had decided to remove the Child BR due to concerns in relation to the abuse allegations she had made and in conjunction with a plan to encourage, support and maintain that child’s relationship with her Sister 1.

Allegations of physical abuse

21 The allegations of physical abuse were set out in an undated letter to the Applicants from the Manager of Casework. That letter was included as an attachment to the Affidavit of Ms Delaney dated 4 June 2007 in evidence before the Tribunal. The allegations included that:

Mr BQ grabbed the child BR’s arms and smacked her legs, he punched her on the arm;

Mr BQ slapped Sister 1’s legs and closed a door on her head;

Ms BP smacked Sister 1 on her arm and leg with her walking stick, smacked her on the hand, hit her with a shoe horn and pulled her hair;

Ms BP smacked the child BR and pulled her hair; and

Mr BQ and Ms BP did not prevent their daughter from kicking Sister 1 and smacking Child 1.

22 These allegations were referred to the Department’s Abuse Against Employees (AAE) Unit and Ms Delaney, from that unit, carried out an investigation which was not completed by the date of the hearing. Ms Delaney did not interview Sister 1 on the basis that it would be intrusive and potentially destabilise her new placement. She had not yet interviewed Sister 2. Ms Delaney had read the transcripts of interviews dated 28 February 2007 between Ms Medina and Ms Hoskin (Departmental Caseworkers) and the child BR and her Sister 1. These were attached to her affidavit. She interviewed the Child BR on 20 April 2007 and the Applicants on 27 April 2007. In Ms Delaney’s affidavit of 4 June 2007 she stated under the heading ‘Preliminary assessment of findings of allegations against employees investigation’ at paragraph 39, that

‘At this stage of the investigation I have assessed the following will be sustained as per the AAE process that:

a. [Sister 1] and [Child BR] have been smacked by [Ms BP] and [Mr BQ];

b. [Child BR] was smacked by [Ms BP] with a shoe horn.’

23 Ms Delaney’s reasons for her preliminary assessment were set out at paragraph 40 of her affidavit. They included that Sister 1 had repeatedly disclosed being smacked and that the three girls had historically made similar allegations. In the interview with Ms Medina Sister 1 had clarified that she was not kicked but smacked. Ms Delaney referred to the child BR having a negative view of Sister 1 and yet supporting her disclosures. She stated that both the child BR and Sister 1 linked the conduct to being naughty and that the context was consistent. Child BR could describe an implement that Ms BP used to put on shoes and described it as blue and Ms BP confirmed that she had a blue shoe horn.

24 Ms Delaney also stated that the Applicants presented as naïve in their expectations of caring for children with significant abuse histories. She said that both Applicants had stated that they did not feel supported by the Department and discussed the inadequacy of the therapeutic intervention to address the children’s challenging behaviours. Ms Delaney stated that ‘Thus I have assessed it is more likely for [Ms BP] and [Mr BQ] to react inappropriately given their struggle to cope.’ In addition, Ms Delaney stated that the Applicants had a negative perception of Sister 1 and that they had concealed the truth to her regarding the gifts given to the child BR at an access visit.

25 The Applicants have consistently denied the allegations of abuse and continued to before this Tribunal.

26 Mr BQ’s evidence as to whether he had ever threatened to smack the Child BR was confused. He was asked under cross examination about whether he would say “if you were naughty I will give you a big smack.” He said that he may have said “I will give you a big smack,” to Sister 1 at one stage.

27 He gave some evidence about the Child BR coming home from school and asking him ‘When [Sister 1] is naughty are you going to give her a big smack?’ He said that he told her that ‘we do not smack’. His evidence was that this was said on a lot of occasions.

28 He denied ever having smacked the children. Later when questioned by the children’s representative he denied ever threatening the children.

Expert Evidence

29 The Tribunal was greatly assisted by the report and evidence of an independent expert, Ms Single. The Tribunal asked the parties to suggest appropriate experts to conduct an assessment. Ms Single was suggested by the Minister as an appropriate expert. Although the Applicants objected to her, the Tribunal determined on the basis of the curriculum vitae’s of the experts suggested by the parties that she was the most experienced and suitable proposed expert to undertake the assessment.

30 Ms Single is a clinical psychologist with over thirty years experience. She has extensive expertise in child abuse and neglect and out of home care as well as attachment and attachment disorders. Her experience and qualifications were set out in an attachment to her report of 10 May 2007 in evidence before the Tribunal. Ms Single interviewed the Applicants, their 20 years old daughter, the three children and the child BR’s present carer.

31 She had the opportunity to observe the three children with the Applicants and their daughter. In addition she observed the Child BR and her Sister 1 with their foster carer. She also reviewed material sent to her by the Applicants and the Department of Community Services. All the parties had the opportunity to question her and she had the opportunity to read the Department’s evidence.

32 Before entering care the child BR and her sisters had experienced physical and sexual abuse, neglect, homelessness and had been exposed to domestic violence. They had had a number of temporary placements. The children, particularly the two older girls had serious behavioural problems when they entered the Applicant’s care. Ms Single pointed out a number of unusual features in the case. In particular, she stated that the first unusual feature that needed to be recognised was the severity of the attachment personality dysfunction of the two older children. After referring to the children’s aberrant parenting Ms Single concluded that

‘Sadly this type of aberrant earlier parenting has left these two girls with serious attachment damage and extraordinary anti-social attitudes including their indiscriminateness and their lack of loyalty in relationships; their lack of guilt conscience; their lack of empathy for others and significant self serving behaviours. These behaviours are quite extreme in these young girls compared with others, even for child protection samples and were present when the children came into care.’ [p. 51 of her report].

33 Ms Single referred to the long history of severe anti-social behaviour which pre-dated the placement with the Applicants. She described behaviour such as lying, stealing, running away, damaging items, swearing, verbal abuse and making allegations against carers. For example, Ms Single stated that the special school that coped with the region’s most behaviourally disturbed young children was, on occasion, unable to contain Sister 2 and she had several long suspensions from school.

34 In Ms Single’s opinion, both Sister 1 and Sister 2 met the criteria for severe conduct disorder. Given the damage that the children had and the acting out behaviours they displayed Ms Single’s opinion was that it was commendable that the Applicants were able to sustain the placement for so long. In Ms Single’s opinion the Child BR’s situation was different. Despite significant neglect and possible abuse in her early years she was removed at a much younger age than her sisters and the damage to her was less entrenched. Ms Single’s opinion was that the Applicants provided the Child BR with good nurturing care and she had formed a strong attachment to them.

35 In Ms Single’s opinion the Child BR’s older sisters had attempted to ‘corrupt’ her in the same way that they themselves were corrupted by their own biological parents. Ms Single considered that the oldest sisters were likely to have exerted pressure on the Child BR in relation to the allegations against the Applicants. In addition, the Child BR had been the target of significant hostility and assault from her Sister 1. Ms Single described Sister 1 as having a hatred of her younger sister (the child BR) and being quite sadistic towards her.

36 Ms Single stated that the second unusual aspect of this case was the long history of these two older girls making allegations against others to have their immediate needs met, even if, in the long term, that fulfilment of such needs disadvantaged the girls. She pointed to other examples of allegations being made. For example, she pointed to a court report of 10 March 2006 which indicated that on entering care Sister 2 had a history of severe behavioural problems including making allegations against carers [p 52 of Ms Single’s report].

37 In her opinion there were major inconsistencies and contradictions in the claims, some of which seemed implausible. For example, in Ms Single’s opinion the reactions of the Child BR and Sister 1 to a reunion with the Applicants seemed inconsistent with children who had been abused by them in the past and were therefore fearful of them. She stated that the Child BR and her Sister 1 were delighted to see the Applicants. [p. 54 of Ms Single’s report]. After some discussion about further examples, Ms Single’s opinion was that the allegations should be viewed with considerable caution and in the context of the history of allegations made against various carers. [p 55 of Ms Single’s report]. In addition, in her opinion the allegations should be viewed in terms of an understanding of the severity of the attachment and personality damage that the two girls presented.

38 In Ms Single’s expert opinion the Applicants presented as emotionally mature and a stable couple. In her opinion they sustained the placement with Sister 1 and 2 far beyond the point that many other foster parents would have done. In Ms Single’s opinion the Child BR’s primary attachment was to the Applicants and she was also strongly attached to the Applicant’s daughter. The Applicants presented with a strong attachment to the Child BR and presented a minimal risk of harm to the child. Ms Single recommended that the Child BR be placed with the Applicants and protected from the destructive aspects of her unusual relationship with her older siblings. She recommended regular supervised contact between the Child BR and her siblings.

39 We have considered the evidence of Ms Robb, a departmental psychologist, in her affidavit of 4 June 2007. She completed a Bachelor of Psychology in 2003 and has been employed by the Department of Community Services as a psychologist since November 2005. She prepared regular psychological opinions to assist departmental managers and case workers support the three children’s placement with the Applicants. Most of her opinions were based on her review of the material in departmental files or on conversations with departmental staff and not on interviewing and observing the Applicants and the children. In saying that we note that she did, at one point, conduct some observation of Sister 1 in January 2007.

40 She identified the following concerns about the long term viability of the placement:

Sister 1 and Sister 2’s challenging behaviour;

the Applicants expressing an inability to cope with their behaviour and the Applicant’s inability to attend to the challenging needs of all three children.

41 On 25 January 2006 Ms Robb prepared an opinion regarding Sister 1 and stated that ‘In particular [Sister 2] identified that her younger sister, the Child BR is the favourite.’ In Ms Robb’s opinion the Applicants had viewed and treated the Child BR more favourably than her sisters.

42 Ms Robb held a follow up meeting with the Applicants to discuss her opinion and strategies for dealing with the children.

43 In Ms Robb’s view the Applicants continually changed their position on whether they were able to care for all children. She considered that the Applicant’s favouritism towards the Child BR led to her Sister 1 not wanting to share a placement with the Child BR. In Ms Robb’s opinion, Sister 2 felt excluded from the placement. In her opinion sibling relationships were important for a child’s long term development and she was concerned about the Applicant’s ability to foster long term positive sibling relationships if the Child BR was restored to the Applicants.

44 Ms Robb cited the negative perception that the Applicants expressed regarding the Child BR’s sisters and their ability to attend to the two older sister’s behaviour when they were in their care. In Ms Robb’s opinion of 14 May 2007, which was attached to her affidavit, Ms Robb concluded that while initially it was hoped that the relationship between the Child BR and Sister 1 might be able to be supported in the placement, it was no longer the case and it would be in the girl’s best interest not to share a placement. She considered that the relationship between the sisters should be encouraged.

45 While we accept her evidence that there were difficulties for the Applicants in managing the three children in the placement we prefer Ms Single’s evidence regarding the complex nature of the children’s behaviour, the relationship between the siblings and the reasons for Child 2’s treatment of Child 1.

Other evidence and submissions

46 We have also considered Ms Cox’s evidence in her affidavit of 7 June 2007. Ms Cox considered Ms Single’s report but came to the view that the Child BR should not be restored to the Applicants. Ms Cox formed the view that some of the abuse that the Child BR had identified had occurred. She had great concerns regarding the Applicant’s ability to promote a positive sibling relationship between the Child BR and her sisters. In her view the Applicant’s perceived Sister 1 and Sister 2 as being bad, deviant children.

47 In part, Ms Cox’s view was that the difficulties between the Child BR and Sister 1 stemmed partly from the way that the Applicant’s had groomed them to perceive each other. She considered that the Applicants lacked insight. Ms Cox was concerned that if the Child BR was returned to the Applicants they would instil a negative attitude towards her siblings in her. Ms Cox also expressed concerns about the Applicant’s capacity to manage the Child BR’s behaviour in the future. Ms Cox referred to a report of the supervised contact visit that occurred on 12 April 2007 between the Child BR and the Applicants.

48 Ms Cox considered that the visit had a negative impact on the Child BR and her new placement. She cited the Applicants asking Child 1, “Is Child 2 still pulling your hair and hurting you?” and Child 1 replying, “Yes.”

49 Ms Single had the opportunity to conduct an in depth assessment, interviewed the three children and had the opportunity to observe the interactions between all three children together as well as those between Child 1, the Applicants, and their daughter. She has extensive experience and expertise. We found her report comprehensive, detailed and well reasoned.

50 She was questioned by all the parties in the Tribunal. Her recommendations remained the same. We accept her evidence and prefer her evidence where it conflicts with that of departmental witnesses, for example, Ms Robb and Ms Cox. Ms Single made it clear that her recommendations were not meant to reflect a criticism of the way the Department of Community Services had managed the case. We concur with her views and have no doubt that the staff members who dealt with the case were pursuing the best interests of the children in undertaking their investigation.

51 The Minister submitted that the sibling relationships are important and they would last long after any order for parental responsibility to the Minister expired and longer than the child’s relationship with the Applicants. As stated previously, the Minister accepted that at the present time it would not be appropriate for the Child BR to reside with one of her siblings. However, the Minister’s long term goal is for the Child BR to reside with either of her sisters, Sister 1 or Sister 2.

52 The Minister submitted that if the Child BR was returned to the Applicants that opportunity would be lost forever as the Applicants would not have the capacity to care for the girls together. The Minister further submitted that the Applicants would not be able to promote Sister 1 in a positive manner to the Child BR. The Minister claimed that the Applicants showed favouritism to the Child BR citing the example of the contact visit on 12 April 2007 where the Applicant’s brought some gifts for the Child BR and did not bring along some for Sister 1 when they knew that the Child BR was living in a placement with her Sister 1.

53 We accept Ms BP’s evidence that the gifts were brought to entertain the Child BR during the contact visit. However they were clearly intended for her to keep after that visit. We accept Ms BP’s evidence that Sister 1 was not coming to the visit or, at least, Ms BP thought that Sister 1 was not coming to the visit and she was away at camp that week.

54 Ms BP said that she took two rabbits to the visit and one of these was intended for Sister 2. She said that the Child BR ate one at the visit and the other was in a bag. We accept Ms BP’s evidence that the Child BR has not had lunch before the afternoon visit, was hungry and ate a rabbit at the visit.

55 That evidence is consistent with the supervised contact report from the contact supervisor in evidence before the Tribunal. The supervisor refers to the Child BR telling her that she had not had lunch and that was confirmed subsequently by her carer [p 60 of Exhibit R2]. The report also stated, [at p 58] that Mr BQ unwrapped the chocolate rabbit and fed some to the child. Some eight days later on 20 April 2007, the Child BR told Ms Delaney, an officer of the Department, that she had visited the Applicants ‘… and they gave me a chocolate, it’s in the fridge.’ In our view, that adds weight to Ms BP’s evidence that she took two rabbits to the contact visit. It is more likely than not that one was consumed at the contact visit and the other made its way back to the fridge in the home where the Child BR was placed. While Ms BP may have intended that one of those rabbits be given to Sister 1 there is insufficient evidence for us to find that she told the Child BR or the visit supervisor that at the visit.

56 We do not place a great deal of weight on the issue of gifts to the Child BR. The Applicants are not trained child psychologists. The bringing of gifts can be seen in the context of carers with an attachment to a young child they had not seen for approximately six weeks. It is clear, from the contact visit notes, in evidence before us, that the Applicants were excited to see the Child BR. It is not surprising that their main focus was on her.

57 During the contact visit the Applicants asked the Child BR whether Sister 1 still pulled hair and was hurting her. The Minister submitted that this was inappropriate. Ms BP’s evidence places the incident in context as she and they were talking about the Child BR’s school. Ms BP told the Tribunal that the Child BR had said that her Sister 1 was picking on her at school. Then either she or her husband had asked whether Sister 2 was still pulling her hair and hurting her. We accept that evidence. Taken in context, given that the Child BR raised the issue, we do not place any significant weight on one or other of the Applicants asking the Child BR about her Sister 2’s treatment of her in that manner.

58 The notes from the contact visit in evidence before us indicate that the Applicants did not completely ignore the other siblings. They state that the Applicants and their daughter all asked after Sister 1 and Sister 2. They commented that it would be Sister 1’s birthday the following month and they would need to find a gift for her. We also note Ms Single’s opinion that despite the allegations against them, the Applicants showed little personal vindictiveness or blame towards the girls and had insight into why the allegations were made.

59 Ms Single recognised that the Applicant’s attachment to the older girls was not as strong as their attachment to the Child BR and that at times of crisis Ms BP had been negative to the older girls. She considered that the Applicants had sustained the placement with the two older sisters far beyond the point many other foster parents would have done given their extreme acting out behaviour and the allegations made against them.

60 Ms Single considered that the Applicants would be able to facilitate a relationship between the Child BR and her siblings. She also recommended that it would be appropriate for the older girls to maintain some relationships with the Applicants. Ms Single recognised the Applicants may be the only continuing, appropriate adult figure in the children’s lives. She also recommended that if her recommendations were adopted the Applicants should seek help and advice from the Child Psychiatry Service.

61 The Applicants denied any physical abuse of the children and stated that they did not smack. There are many inconsistencies and conflicting statements in the children’s records of interview. There are serious issues regarding the veracity and reliability of both Sister 1 and Sister 2’s accounts of abuse by the Applicants.

62 The Minister recognised in his submissions that sustaining allegations of abuse for Allegations Against Employees purposes was different to establishing them to a requisite standard of proof before a tribunal or court.

63 We have read the transcript of interviews between the children and the departmental workers. We have considered Ms Single’s report and expert opinion including her interviews with the children and her discussion regarding the allegations the children have made against the Applicants. Having read these and considered the evidence of the Applicants, we are not satisfied that the Applicants or their daughter have smacked the children or engaged in any other physical abuse of the children.

64 We have referred previously to the evidence of Mr BQ regarding whether he had ever threatened to smack the children. On his own evidence he may have made such a threat on one occasion. However taking into account all of the circumstances of the case we do not consider that he ever carried out that treat.

65 On the basis of Ms Single’s report and the Applicants’ own evidence they had a period where he and his wife were under immense pressure given the very difficult behaviour of the children that were placed with them. It is clear from his own evidence and Ms Single’s assessment that he and the Child BR have a very strong bond. If he has threatened to smack the Child BR on one occasion we do not consider it should preclude the Child BR from being placed with him.

Conclusion

66 The child’s primary attachment is to the Applicants and their daughter. The Applicants and their daughter have a strong attachment to the child. We are satisfied on the totality of the evidence before us that the Applicants and their daughter will provide a warm, caring, stable and nurturing environment for the Child BR. On the evidence before us we cannot be satisfied that the Applicants have physically abused the three children as alleged by departmental officers.

67 The Minister does not consider it appropriate that the Child BR be placed with her siblings at this point in time. Neither do the two psychologists who have considered the issue or the child’s representative.

68 We accept Ms Single’s opinion that the Applicants do have an attachment to the Child BR’s sisters and that with assistance; for example, from a child and family psychiatric team, they could foster the relationship between them. We accept that the Applicants are willing and have the capacity to facilitate the relationship between the Child BR and her siblings and work with the Department of Community Services.

69 The Tribunal has been informed that the child must now move to a new placement. Her present carer has said that she is unable to continue caring for her. We agree with the Applicants and the Child BR’s representative that her best interest is served by setting aside the decision to remove her from the applicant’s care.

Order

The decision to remove the Child BR from Applicant’s care is set aside. The Child BR is to be returned to the Applicants by close of business on 26 June 2007.