C v Department of Communities, Child Safety and Disability Services
[2013] QCAT 97
| CITATION: | C v Department of Communities, Child Safety and Disability Services [2013] QCAT 97 |
| PARTIES: | AEC (Applicant) |
| v | |
| Department of Communities, Child Safety and Disability Services (Respondent) |
| JOINED PARTIES: | DLB, DL, JW, JK, WKA, WK, DE and DN |
| APPLICATION NUMBER: | CML051-12 |
| MATTER TYPE: | Childrens matters |
| HEARING DATES: | 6, 7 February 2013 |
| HEARD AT: | Toowoomba |
| DECISION OF: | Mr Ron Joachim, Presiding Member Ms Penny Feil, Member Ms Carolyne Windsor, Member |
| DELIVERED ON: | 12 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Department of Communities, Child Safety and Disability Services to remove DI from the care of Mr and Mrs C is confirmed. |
| CATCHWORDS: | CHILD PROTECTION – REVIEW OF DEPARTMENT’S DECISION IN WHOSE CARE A CHILD SHOULD BE – where a 6 year old child in care has lived with approved foster carers for over 4 years – where Department happy with care – where Department decided to remove child to live with 2 siblings in alternative foster care – where siblings well cared for – whether child should be removed Child Protection Act 1999, ss 5A, 5B |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented herself |
| RESPONDENT: | Represented by Ms C D’Aquino |
| JOINED PARTIES: | JW & JK represented by Mr J Streit of counsel instructed by KLP Family Law |
| OTHER JOINED PARTIES: | Represented themselves No appearance by DE & DN |
REASONS FOR DECISION
DI is 6 years old. He has been in the care and protection of the Department of Communities, Child Safety and Disability Services (‘the Department’) since March 2008. A long term guardianship order granting guardianship to The Chief Executive until DI is 18 was made on 16 March 2012, following 2 failed attempts at reunification with his parents. Since 19 March 2008 he has been cared for by approved foster carers CC and AEC. They live in a regional town.
The Department is very happy with the level of care he receives there.
On 13 April 2012 the Department decided to remove DI from the C family and to place him with approved foster carers, WKA and WK. They live in another regional town, about 2 hours drive away.
WKA and WK have cared for DI’s siblings J (9 years of age) since 9 September 2004 and DT (7 years of age) since she was 17 days old. The Department wants all 3 siblings raised together. DI had spent from November 2007 until March 2008 in WKA and WK’s care. They have a long history with DI’s immediate and extended family due to the childrens’ placement.
The C family are opposed to the move and have applied to QCAT to review the decision.
QCAT will decide this matter by way of a fresh hearing on the merits of the C’s case in order to produce the correct and preferable decision.[1] Section 24 of the QCAT Act lists the options available to the Tribunal in confirming, amending or setting aside the Department’s decision. The question to be answered is: Should DI stay with the C family or should he move to WKA and WK and be raised with 2 of his siblings of similar ages.
[1] Queensland Civil and Administrative Tribunal Act 2009, s 20
In deciding this question, the Tribunal needs to have regard to the main principle for administering the Child Protection Act 1999 (CP Act), that the safety, well being and best interests of a child are paramount.[2]
[2] CP Act, s 5A
The Tribunal must also have regard for the other general principles.[3] Included in these is the principle (i) that if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible. This principle however, is overridden by the paramountcy principle above. Other principles highly relevant in this matter are principles (k), (l) and (m)[4] relating to a child’s ability, connection to family and community, the child’s development and other needs, and the child’s knowledge of identity and cultural values.
[3] CP Act, s 5B
[4] CP Act, s 5B
The standard of proof required to determine this matter is that stated in Briginshaw[5] which is the standard of reasonable satisfaction. The Tribunal does not need to be satisfied beyond a reasonable doubt.
[5] Briginshaw v Briginshaw (1938) 60 CLR 336
Agreed facts and facts in dispute
The parties to this matter who participated in the hearing agree to the following facts:
1.There is no dispute with regard to the level of care able to be provided to DI by either Mr and Mrs C or WKA and WK;
2.DI enjoys contact with all of his siblings and this will remain an ongoing part of his case plan as long as it remains in his best interest.
3.DI is attached to his current carers Mr and Mrs C.
The following facts are in dispute:
1.The long term detrimental effects on DI should he be removed from his current placement with Mr and Mrs C;
2.The long term benefits for DI should he remain in his current placement with Mr and Mrs C;
3.The potential detrimental effect on DI due to a loss of opportunity to reside on a full time basis with biological siblings of his own age group;
4.The long term benefits for DI to be placed on a full time basis with biological siblings of his own age group;
5.The impact on DI’s relationships with family (such as biological parents and maternal grandparents) as a result of either a placement with the C Family or the WKA and WK family.
The applicant’s case / the case for not moving DI
Mr and Mrs C consider that there would be a significant detrimental affect on DI should he be removed from his current placement. They state that DI has been in their care since 19 March 2008 when he was an 18 month old infant. He has formed a strong attachment not only to the C family but strong attachments within their extended family, friends, school and the local community. His attachment is such that he introduces CK, Mr and Mrs C’s child as his big brother. He refers to the C extended family members as nanny, poppy, uncles and aunties. They argue he has a right to be provided with a safe and stable living environment.
They submit that DI’s best interests, his views and his stability are all at risk if he was to move. The C’s say the real risk is of DI not coping emotionally, a risk identified by Ms Morgan and Ms Russell, who wrote expert reports. The C family argue that this risk is unacceptable.
Mrs C recognises the significant other people in DI’s life. She states she and her husband will continue to work to ensure they are positive about the significant people including encouraging parental contact and contact with his siblings and wider family should he remain in their care. She told the Tribunal she wanted to do everything in her power to facilitate contact.
The applicants advise that DI has two adult sisters, DLB and DL who live within walking distance of the C family home, and that DI has a strong attachment to them seeing them daily. He also has sleepovers with his sisters.
DI also has other sisters with whom he has contact and with whom he enjoys time together. These are A and Y.
The C’s contend that if DI moves, these sibling relationships will not be continued or encouraged.
They submit that up to March 2012, contact with his siblings J and DT who are in the care of WKA and WK has been inconsistent. They submit that DI has had very little contact with his maternal grandparents JW and JK and other siblings L and K, who live with JW and JK under a Family Court Order.
The applicants provided letters of support from DI’s teachers and parents of DI’s close friends.
They assert they live in a small community and are very involved within that community whether it be swimming, football etc.
Whilst not disputing that DI has recently formed an attachment to J and DT, the applicants argue that the relationship has been inconsistent over the last number of years. They submit that they have always encouraged DI’s relationships with all his family and will do their best to promote him having a happy and healthy relationship with all his family members. They assert that despite their efforts to involve the grandparents JW and JK, in DI’s life, the grandparents have not taken up their offers.
Mr and Mrs C suggest that Judith Morgan, DI’s play therapist is in a unique position to gauge and have an opinion on how DI will cope if moved from their care. Ms Morgan believes DI should not move.
Mrs C argues that it is accepted that DI is happy and developing well with them. She poses the question “why run the clear risk of harming his emotional health any further?”
Mrs C makes comment on the report of Grant Thompson in which he stated
I have not reviewed any recent independent assessment on DI that would indicate that he would suffer substantial level of distress or harm if he was removed from the home of Mr and Mrs C and placed with his brother and sister J and DT at the home of WKA and WK
In response Mrs C suggests that Mr Thompson had not read the recent reports by either Judith Morgan or Diana Russell, the other experts. She further suggests that Mr Thompson’s statement needs to be reconsidered in the light of recent assessments. She submits it would have been beneficial for all of the assessors to meet and discuss their professional opinions before submitting reports. She further suggests that the two people who actually know DI well are Judith Morgan and Diana Russell and their professional views should carry more weight than Mr Thompson given the significant amount of time they have spent with him.
The applicants submit that “not only have two paid professionals stated their professional judgment to be DI should stay where he is living with us, but so did two child safety staff. Morag is a team leader with many years of experience in child protection and Saskia Smith is a child safety officer with many years’ experience caring for foster children.”
In summary Mrs C says the following about DI
He is a happy and healthy young boy and removing him from her care would be extremely disruptive and upsetting to him.
He would no longer have contact with DL, DLB, A and Y.
Our family have been the only stable thing in DI’s life from a such young age.
Removing DI from our care would mean he would lose out on a lot more than he would allowing him to stay.
We would always encourage DI’s relationship with his parents and contact with his siblings and maternal grandparents.
DI would not have to change schools, he would be able to keep his school friendship, continue to see our extended families and keep his strong relationship with his sisters and live locally.
Their case is supported by Diana Russell, a Psychologist with 12 years experience, Judith Morgan, DI’s play therapist, who has qualifications and experience in psychology, education and psychotherapy and Morag Buitendach, a team leader within the Department.
Ms Russell described DI as a happy child who had become quite anxious about what was happening, even though she was unsure he understood the concepts. She said would be unaware of the consequences. She noted the difference in the family size between WKA and WK and the C’s suggesting more competition at the former because of the additional children.
Ms Russell stated the long term sibling relationship proposed by the move had not been tested and if DI doesn’t adjust and feels abandoned, he will lack trust.
In her report Ms Russell referred to devastating consequences for DI could occur if he was unable to cope with the change.
In oral evidence when questioned about this, she stated DI could have personality changes, and could exhibit challenging behaviours. This she said, was a theoretical possibility but couldn’t predict what would happen.
In her opinion, Ms Russell considered that the parent-child relationship was more important than the sibling relationship. She agreed that DI would be capable of forming a new attachment with WKA and WK. She stated that it was very important for DI to see his family and that he can still develop long term memories if he sees them regularly.
Ms Russell, whilst conceding that DI would be safe with WKA and WK and they could provide good care for him, stated to move DI would not be in his best interests. She said this was because, with the C’s, DI is safe, stable, achieving milestones, is happy, sociable, and is part of a family and a community.
Ms Morgan reported DI is a lot more settled and happier over the last part of 2012, and described him as a normal settled boy for the most part.
She strongly believes DI should remain with the C family. She stated DI would experience significant distress if moved given the degree of disruption that has already occurred in his life and given his attachment to the C family. She considered there would be an unacceptable risk of him reverting to previous behaviours of distress if he was moved.
Theoretically she stated that risk could be mitigated for a child in these circumstances if the carer was chosen carefully, was aware of the possibility of the child being re traumatised, and if there was adequate support in place.
She stated DI had told her his wishes through the way he had interacted with toys and material. She said these interactions demonstrated DI wants to stay where he is. She said, DI has shown through his play he needed to be safe and protected and that the examples she gave in her report meant he wanted to stay at the C’s. In relation to other interpretations, she stated it was difficult to be definite but she looks at patterns.
Ms Buitendach stated DI could be supported with ongoing contact to strengthen his relationship with his siblings. This view was also shared by Ms Smith.
She advised she was unable to identify actual harm. She said there was a risk DI may not be able to readjust if moved, and he will not cope emotionally with this, having an impact at school and on his subsequent behaviours.
She considered that moving DI and not moving him to grow up with his siblings both were unacceptable risks, but there is a greater risk if he moved.
Her view about DI remaining with the C family is based on preventing minimal risk or harm to DI. Her role, she stated, is to ensure protection from emotional harm for DI.
The respondents’ case / the case for removing DI
The respondent Department, the grandparents JK and JW, and WKA and WK, the foster carers for 2 of DI’s siblings all support the proposition that DI should be relocated to WKA and WK. DI’s parents supported this proposition in correspondence submitted by them.
Mr Thompson is a social worker in private practice with considerable experience in child protection matters. He provided a lengthy social assessment report and gave extensive oral evidence. His evidence in the main, supported the case for removing DI.
His evidence including the following:
§DI seems very much at ease at WKA and WKs and knows what it means to visit them.
§DI is very happy at the C household and has a close attachment.
§He looks upon the C’s as his primary carers.
§The least intrusive, easiest decision would be for DI to stay at the C’s which would avoid the stress of him moving.
§It would be reasonable for DI to grow up in either household.
§It would be beneficial for DI to grow up with his siblings.
§WKA and WK have a close social and family alliance with DI’s Grandparents.
§WKA and WK have a close connection to DI’s parents.
§If DI was to remain with the C’s he would have good quality care and there would be no disruption to a 5 year placement, and he would have regular contact with DLB and DL, his older sisters.
§Mr Thompson considered harm to DI should he move to WKA and WK’s could potentially include:
o Sleeping and eating difficulties.
o Tantrums and acting out.
o His becoming less communicative.
o Challenges to his social alliances.
o Problems with concentration.
Whilst he stated it would be very difficult to predict how DI would react, Mr Thompson considered that provided adequate supports were in place and DI was being cared for by intuitive carers who had back up support, DI would be able to manage the change over relatively well.
He stated there was a level of risk associated with the move but it was not unacceptable, and the transition could be made successfully.
He further advised the Tribunal that because DI has a good attachment he should be able to adapt fairly quickly as he understands what good quality care is. He noted that it was inevitable DI would experience some level of stress if moved.
Mr Thompson considered that mitigating any risk to DI if he were to move could be assisted by:
§Regular contact with the C’s and his older sisters.
§Intuitive careful carers who were aware of his distress cues.
§Counselling and family therapy.
§Sensitive handling of the transition.
Mr Thompson stated that he had considered DI’s future for the long term and that some of the most enduring and important relationships for adult years are the sibling relationships. He referred to the research about sibling groups cited in his report. This is represented below:
“Seventy-five percent of sibling groups are separated after they enter the foster care system. In theory, siblings are supposed to be placed together; however, this is the exception rather than the rule. The reasons for separating sibling groups in foster care are numerous, but the most common reasons other [sic] logistical. Foster homes tend to fill their placement quotas with children from several different homes and lack sufficient space when the sibling group needs placement. Siblings are also separated because it is difficult to find families willing to accept a sibling group. Relationships with siblings over a lifetime are usually our most enduring. The intensity of the sibling bond is enhanced by several factors: accessibility of siblings to one another; lack of parental protection and need fulfilment, and the ongoing search for personal identity. Children who enter the foster care system rely heavily on sibling attachments due to inadequate parental attachments. The presence of the sibling relationship minimises the trauma of parental separation and loss. When siblings are separated through foster care and adoption, they experience further trauma.”[6]
[6] Levy, T. & Orlans, M (1999) Attachment, Trauma and Healing: Understanding and Treating Attachment Disorder in Children and Families, CWLA Press: Arlington
He indicated that the presence of sibling attachment helps reduce the impact of loss of biological parents. Mr Thompson further advised that if DI was not to reside with J and DT he would at some point try to establish long term links with his family of origin, and will enter adulthood lost if he didn’t make connections.
Mr Streit representing JW and JK has submitted that Mr Thompson and the Department report that WKA and WK were more than capable foster carers and will provide a safe and caring family environment for DI. He submits, that in growing up and living with his 2 closest in age siblings, DI has an excellent opportunity to develop a lifelong sibling connection with DT and J. He also submits as follows:
§DI already has an attachment to DT and J as he has to WKA and WK.
§WKA and WK have a good relationship with the biological parents and as a consequence DI will be given more opportunity to develop a connection with them.
§WKA and WK have a close relationship with the maternal grandparents and as a consequence DI will have a greater opportunity to continue to develop a closer connection with his Grandparents.
§Any emotional difficulty experienced by DI in leaving the C’s can be managed by a careful case plan that sees the C’s playing an important role with WKA and WK’s in DI’s transition.
§Mr Thompson informed the Tribunal that he drafted his report on the context of considering DI’s long term future that is after DI reaches 18 years of age. This necessarily took account of the long term benefits to DI in having the opportunity to live with and develop an enduring sibling relationship with J and DT.
Mr Streit argues that Ms Russell’s social assessment report was to assist in determining the appropriate living arrangement until DI reached 18 years of age. As a consequence, he submits her report is deficient to the extent that it fails to consider a critical relevant factor, namely the long term benefits to DI post 18 years by having the opportunity to live and grow up with J and DT. Ms Russell also informed the Tribunal she did not feel she has spent enough time to be able to explore the quality and intensity or the health of DI’s bond with each sibling.
In short, Mr Streit submits that her report is not a balanced assessment and the Tribunal should not be reasonably satisfied by the report’s recommendation that DI should remain with the C’s. Mr Streit makes a similar comment in respect of Ms Morgan’s report, noting that Ms Morgan’s report does not contain any information about interviews with WKA because none occurred and there were no observations made by her of DI’s interactions with J or DT. In the conclusion in Ms Morgan’s report she states “to continue to subject DI to further disruption and disconnection from people with whom he has developed significant relationships of a secure and loving nature will impede his growth and development and is likely to subject DI to further attachment trauma and will almost certainly cause mental health problems in adulthood.”
Mr Streit submits that the effect of Ms Morgan’s evidence is that she found the concept of DI being removed from the C’s as personally upsetting because she was concerned about children. She conceded her report was deficient because there was no one on one contact with WKA in the way she had with Mrs C.
One of the facts in dispute in this matter is the long term detrimental effect on DI should he be removed from his current placement with Mr and Mrs C. Mr Streit refers to the evidence of Mr Thompson in this regard in that Mr Thompson had not viewed any recent independent assessment on DI that would indicate he would suffer any substantial level of distress or harm if he was removed from the home of Mr and Mrs C and placed at WKA and WK. Mr Thompson further cautioned about making any assumptions that DI would experience a similar level of anxiety and distress as he experienced in the reunification attempt with his parents.
Mr Streit submits that Mr Thompson’s view was that with sufficient opportunity and therapeutic support, all the basic imperatives and conditions for DI to develop a secure level of attachment to WKA and WK were present.
Ms Russell made observations in her report concerning the attachment that DI had to the C’s and how his emotional development would be likely to be negatively impacted upon should he be removed and placed with WKA and WK. She was concerned for DI’s mental health and thought there would be devastating consequences if he was unable to cope.
Mr Streit submits that when asked by the Tribunal whether WKA and WK could provide all of the things that Ms Russell had identified were being provided for DI by Mr and Mrs C, her evidence was that they could.
Mr Streit commented on the long term benefit for DI to be placed on a fulltime basis with biological siblings of his own age by referring to the evidence of Mr Thompson that some of the most enduring relationships are with siblings and that growing up in the same household will give DI 12-13 years to grow up and build on that relationship, whereas DL and DLB are worlds apart in psychological development.
Mr Streit also noted that Mr Thompson had advised DI is clearly very fond of J and DT and any opportunity to spend time at their home is also an opportunity to spend time with trusted members of his family.
Mr Streit submits that there is evidence before the Tribunal of possible risks associated with confirming the decision of the respondent. However he submits there is ample evidence before the Tribunal that those possible risks can be managed and mitigated by a collaborative approach principally by the Department, the C’s and WKA and WK’s. He points the Tribunal to the evidence of Mrs C that she will assist in any transition to WKA and WK’s, should that be the Tribunal’s decision. Finally he submits there is sufficient evidence to establish to a reasonable satisfaction to confirm the decision of the respondent to place DI with WKA and WK.
In her submissions WKA lays out some brief history. In March 2008 DI was removed from the care of WKA and WK and was placed with the C family in order to facilitate an attempt at reunification with his parents. The attempt at reunification failed as did another attempt which commenced in 2010/2011. WKA and WK had been informed should the reunification plan not succeed, DI would return to their care. This did not occur.
WKA submits that the long term benefits for DI should he remain with the C’S are that he will reside in a safe, secure and caring family and existing attachments may be continued. She submits that in respect of not being able to reside with biological siblings of his own age, DI may lose meaningful contact with his siblings close in age and this may mean he has no real connection with any member of his family of origin as he ages, leading to the lack of a secure relationship base, the lack of extended family connection for his own family, unfulfilled desires relating to his connection with his family of origin, and feeling alone or left out in relation to matters of his family of origin.
On the other hand she submits that there are long term benefits for him to be placed on a fulltime basis with biological siblings his own age. These include:
§DI will share a safe, secure and caring environment with J and DT, members of WKA and WK family.
§DI is already attached to J and DT as well as P and E, WKA and WK’s children.
§The oral evidence supports that DI will be able to strengthen the attachment with WKA and WK’s.
§Mr Thompson’s evidence is that where possible it is in the best interests of a child to grow up with their siblings as the relationships endure a lifetime.
WKA also submits that whilst it is acknowledged the transition of DI from one safe and secure placement to another may result in some issues around grief and loss, the long term benefits to allow him to grow up with his siblings close in age will outweigh any initial distress as a result of his placement change. This move will allow DI to grow up alongside his siblings who are close in age.
Finally, she submits that if DI is placed with WKA and WK family he would have frequent opportunities to further develop and enhance positive relationships with his maternal grandparents and his biological parents.
The Department urges the Tribunal to accept Mr Thompson’s evidence that whilst there may be some risk of harm to DI if he should move and that the inclination is to not to expose him to stress, DI already has a foot in WKA and WK camp, is familiar with the property, knows WKA and WK and their children, and has the opportunity to have contact with his parents.
The Department also notes Mr Thompson gave evidence that there is no evidence of DI suffering from any diagnosable mental illness and that he is of the view that with sufficient opportunity and therapeutic support, all the basic imperatives and conditions for DI to develop a secure level of attachment to WKA and WK are also present.
The Department submitted that whilst Ms Russell’s report is considered detailed and balanced, it is predicated on her personal weighting on the importance of child/parent attachment in an established placement, which she failed to support with relevant research. It submitted that the weight given to Ms Russell’s recommendation that DI should remain with Mr and Mrs C, is therefore diminished.
In relation to Ms Morgan’s evidence, the Department submits that she was not a forensic expert and was not afforded an opportunity to consult with WKA and WK in her role as counsellor. She also did not have an opportunity to observe DI with WKA and WK or with the C’S.
The Department submits that under cross examination Ms Morgan was unable to support her contention that the escalation in DI’s behaviour around an Easter holiday could be directly attributed to a time he had spent with WKA and WK. Further, the Department submitted that in oral evidence Ms Morgan stated that DI’s behaviour had noticeably lessened in the latter part of the year. The Department submits that this is in spite of the fact of his having continuing contact with his siblings and WKA and WK.
The Department submits that Ms Morgan’s report and oral evidence regarding DI’s behaviours and presentation should be given weight in that she has been DI’s counsellor for a number of years, but that her recommendations regarding the placement of DI should be given less weight given she did not have the opportunity to observe and interview all parties nor to observe DI interact with the C’S, WKA and WK or DI’s siblings.
The Department submits that there are 2 risks of harm that have been identified for DI. Firstly, the risk of harm involved in removing him from an established placement with a confirmed attachment to his carer, to a new placement and therefore the transfer of attachment and consequential risks.
The second risk to DI’s wellbeing is that he not be afforded the opportunity to develop a relationship with like aged siblings by being able to grow up in the same household.
The Department submits that the risk of harm to DI should he move placement could be mitigated by a number of factors. These include his current familiarity in his relationship with WKA and WK and his siblings in that household, his current emotional stability, which has been confirmed by the 3 expert witnesses, third party support in the form of continued counselling, his ongoing relationship with the C’S and the commitment made by the Department to continue his relationship with his older sisters, DLB and DL.
The Department states that DI’s ability to develop relationships with his siblings, which research has indicated is usually the most enduring for his lifetime, is enhanced by the accessibility of siblings to one another. It is the Department’s submission that the benefits to DI from his sibling relationships are maximised only by him residing with his siblings in one household and interacting with them on a day to day basis. The only group of siblings of similar age live with WKA and WK.
The Department finally submits that in balancing the risks posed to DI and his ongoing wellbeing to 18 years and beyond, the risk to his wellbeing is greater should he not be afforded the opportunity to develop relationships with his like aged sibling group on a day to day basis, by being in the same placement.
The Tribunal’s view
We have been told by some witnesses about DI’s differing views about where he would like to live – sometimes with the C’S, other times with WKA and WK. The Tribunal considers great care needs to be taken in considering the different wishes of a 6 year old child who expresses different views in different environments.
There is agreement that if DI were to move from the C family, he would suffer some form of distress. There was evidence given that there would be some emotional harm caused. This could take the form of him becoming less social, regressing in behaviours, showing poor school performance, and exhibiting anxiety. The Tribunal accepts this position.
The Tribunal also accepts that if WKA was able to identify these indicators, plan for them, prepare her family, and seek advice and assistance on how to manage this potential harm, the effects on DI would be mitigated. This would also be assisted by ongoing counselling and therapy as suggested by Ms Russell and Ms Morgan, which was supported by WKA.
DI was described as a resilient child. It is accepted by the Tribunal that WKA has the skills to assist DI in a difficult transition. She outlined a range of positive measures she would undertake to assist including:
§Attend a planning meeting.
§Provide daily support and honest answers to DI’s questions.
§Assure him his needs will be met.
§Seek outside assistance if required.
§Provide emotional, physical and social support.
§Be aware of behaviour regression.
§Educate the family on how to support DI.
§Be aware of expressions of grief and loss.
§Not have any more respite children in her care.
§Make DI the no.1 priority in the early days.
The Tribunal accepts that DI knows WKA and WK household, its members and routines.
He has visited on many occasions. He has been on short holidays with them. He is pleased to go on visits to WKA and WK and enjoys his time there. This is of comfort to the Tribunal in making this difficult decision about where he should live. Even Ms Russell considered WKA and WK were good parents who would have the skills to assist DI if he were to move, and that they would be able to recognize the need for outside assistance if required.
All of the expert witnesses accepted the research cited by Mr Thompson in Levy and Orlans, regarding the importance of sibling relationships.
DI has developed a close attachment to the C family, in particular to Mrs C. The evidence from 2 of the experts is that once a child has formed a close attachment to an adult carer, the child is able to form an attachment to another carer.
The Tribunal is of the view that DI would be able to form a close attachment to WKA and that she has the skills, knowledge and attitude to minimise the trauma of the move. The Tribunal also considers that Mrs C possesses these attributes and would work diligently, despite the great hurt she would feel, to ensure that DI has as smooth a transition as possible. Both families indicated their willingness to facilitate sibling contact. Mrs C advised the Tribunal of the many ways she would assist if the decision went against her.
The Tribunal accepts that in the short term DI’s well being will be upset. However, he has another 11½ years in care. We consider it is in his best long term interests to be raised with his siblings of a similar age. We also take into account general principle (i) that “if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible.”
It is possible for such a placement to occur with DI’s siblings. Indeed there is a willing, well respected carer available. DI should be placed there unless it can be shown it is against his safety, wellbeing and best interests to do so.
The Tribunal is not satisfied this evidence has been given to it. Whilst there will be some trauma associated with DI’s move, the Tribunal believes this will be of relatively short duration because of the factors mentioned above including his resilience, the abilities of Mrs C and WKA to assist DI with his transition between households, DI’s knowledge of and contact with WKA and WK household, and the high likelihood of DI forming a close attachment to WKA.
The Tribunal found both Mrs C and WKA to be impressive witnesses and strong advocates for the children in their care. The children are very fortunate not only to have foster carers of high quality, but also foster carers who will stand up for what they see are the childrens’ rights.
The Tribunal therefore confirms the Department’s decision to remove DI from the care of Mr and Mrs C and place him in the care of WKA and WK.
Matter of concern
Mr Thompson is critical of the way the Department has handled decisions about DI. Both WKA and Mrs C were also critical.
Criticisms arose because of the following actions/ inaction of the Department:
§A failure to notify DLB and DL (DI’s siblings) or their then carer of DI’s placement with the C family in 2008, just a walk away from where they lived.
§The way DI was removed from WKA and WK in 2008 after a number of months with little notice, at night with no apparent urgent imperative, and no preparation.
§A lack of action on repeated requests by the carers of the siblings to facilitate a range of sibling and other family contact such that sibling contact was significantly adversely affected.
§The decision making around DI’s long term placement following the failed reunification attempts with his parents, resulting in him not being returned to WKA and WK in a timely manner.
The Tribunal agrees with these criticisms.
The Tribunal considers the handling of DI’s case warrants close examination by an external expert to report to senior levels of the Department on ways to prevent what the Tribunal and others see as extremely poor case management. Hearing from such an expert may go some way in preventing such basic errors occurring in the future.
The case management, in the Tribunal’s view, has been such that the Department has failed to apply the principles outlined in Part 2 of the Act.
The Tribunal approves these reasons being published to the Minister for Communities, Child Safety and Disability Services and to Mr Carmody, who is currently conducting an inquiry into the child protection system in this state.
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