Egq v Secretary, Department of Communities and Justice

[2020] NSWCATAD 283

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EGQ v Secretary, Department of Communities and Justice [2020] NSWCATAD 283

Hearing dates:

23 July 2020

Date of orders:

16 November 2020

Decision date:

16 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
Emeritus Professor P Foreman, General Member

Decision:

The Decision of the Respondent made on 14 October 2019 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review under section 245 Children and Young Persons (Care and Protection) Act 1998 (NSW) – child protection – care and protection of children – accumulation of factors amounting to an "unacceptable risk" of harm to children - cancellation of authorisation as an authorised carer.

Legislation Cited:

Adoption Act 2000

Adoption Information Act 1990

Administrative Decisions Review Act 1997(NSW)

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Children and Young Persons (Care and Protection) Regulation 2012

Community Services (Complaints Reviews and Monitoring) Act 1993

Disability Inclusion Act 2014

Cases Cited:

Briginshaw v Briginshaw [1938] HCA 34

Johnson v Page [2007] Fam CA 1235

M v M[1988] HCA 68

Re Benji & Perry (2018) NSWSC 1750

The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1

YG v CG Minister for Community Services [2002] NSWCA 247

Category:

Principal judgment

Parties:

EGQ (First Applicant)
EGS (Second Applicant)
Secretary Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Dean Lawyers (Applicant)
V Smith (Respondent)

File Number(s):

2020/00093315

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the Tribunal restricts disclosure of the name of the applicants, his or her victims or of evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. EGQ and EGS are authorised carers under the Children and Young Persons Act 1998 (the ‘Care Act’). The Department of Communities and Justice (formerly known as Department of Family and Community Services) (the respondent) is a New South Wales Government department providing, amongst other things, case management for out of home care to children in New South Wales.

2. A publication restriction applies in this matter. We have used pseudonyms and refer to the applicants as ‘EGQ’ and ‘EGS’ and collectively as (the applicants).

3. The applicants had the responsibility for the daily care and control of their five biological grandchildren who were placed in their care on 23 April 2016 and remain under the parental responsibility of the Minister for Family and Community Services (the Children). The respondent is, and was, responsible for the case management in relation to the Children.

4. At the time of the hearing the Children were the following ages:

• child A 13 years;

• child B 11 years;

• child C 10 years;

• child D 9 years;

• child E 6 years.

5. The applicants’ daughter is the biological mother of each of the five children. All but one, child E, have the same biological father.

6. The Children were removed from the care of their parents following the respondent receiving thirteen risk of significant harm reports (ROSH report) relating to educational neglect, medical treatment not provided, exposure to domestic violence, inadequate supervision, risk of sexual harm, child inappropriate sexual behaviour, sexual abuse, inadequate shelter, physical harm and failure to thrive. Following an investigation the Children’s Court at Campbelltown on 15 December 2016 placed the children in the parental responsibility of the Minister until they attained 18 years of age.

7. On 13 July 2018, the respondent received a ROSH report concerning the Children ranging from, medical neglect and nutritional health deficiencies.

8. On 28 June 2017, a referral was made to an intensive family based service which remained in place until 11 September 2017.

9. On 7 August 2017, a referral was made to the Child Protection Counselling Service (CPCS) to provide therapeutic support to one of the Children and the applicants.

10. Between 23 April 2016 until the Children’s removal from the applicants’ care on 11 September 2019, forty one home visits were conducted.

11. On 11 September 2019, an incident occurred relating to EGS, the Children’s grandmother, whereby a medical emergency occurred at the public school where the Children attended and EGS was transported to hospital. On that same day the Children were placed with an alternative relative carer, a maternal aunt. Child A resides with a different family and has regular contact with his siblings.

12. On 8 October 2019, an assessment report was completed to assess the suitability of the applicants inclusive of their capacity with respect to ensuring the Children’s needs are met, understanding the long term care orders for the Children and the applicants’ physical, emotional and cognitive capacity to understand their grandchildren’s needs.

13. On 13 November 2020, the applicants were sent a letter from the respondent setting out the reasons for decision to change the Children’s placement.

14. On 10 March 2020, an internal review of the decision concerning the applicants was notified to the applicants in writing.

15. The decision made by the respondent on 13 February 2020 (the reviewable decision) is an administratively reviewable decision.

16. The applicants are seeking that the Tribunal set aside the reviewable decision. It is this matter which is before us for determination.

The Hearing

17. The hearing took place on 23 July 2020.

18. The parties were represented by a solicitor. The applicants were not cross-examined and the hearing concluded by each of the parties’ solicitors making oral submissions.

Relevant Legal Matters

19. The Tribunal’s power to review decisions concerning authorised carers arises under s 245 (1) (c) the Care Act. The section relevantly provides:

245 Decisions that are administratively reviewable by Civil and Administrative Tribunal

1. Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively Reviewable Decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

   (c)   a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

   …

2. In this section, 

"relevant decision-maker" , in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.

…”

20. Other provisions of the section do not concern these proceedings. However, there are commensurate provisions enlivening the Tribunal’s jurisdiction to conduct an administrative review. Those provisions arise under the Community Services (Complaints Reviews and Monitoring) Act 1993. Section 28 relevantly provides:

28 Applications to Tribunal for administrative reviews of decisions

1. A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

   (a) a decision that is an administratively Reviewable Decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 35 of the Disability Inclusion Act 2014 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

….

21. There was no dispute that an application concerning the removal of the Children from the applicants’ daily care and control would fall within the jurisdiction of the Tribunal.

The applicable legal framework

22. The objects of the Care Act, are set out in s 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, and

(a1)   recognition that the primary means of providing for the safety, welfare and wellbeing of children and young persons is by providing them with long term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(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.

23. The Care Act is to be administered under the principle that the safety, welfare, and well-being of children are paramount (the paramount concern): s 9(1) of the Care Act. 

24. Subject to that, the Care Act sets out other, particular principles to be applied in the administration of the Act. These are found in ss9(2), 10, 11, 12 and 13 of the Care Act.

25. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice s38 the NCAT Act.

26. The standard of proof is on the balance of probabilities. The High Court decision in Briginshaw v Briginshaw [1938] HCA 34 is relevant in determining whether the burden of proof, on the balance of probabilities, has been achieved.

27. When determining issues of, amongst other things, removal and restoration of a child in all decisions under the Care Act involving the paramount concern of safety, welfare and well-being of a child, the proper test to be applied is that of "unacceptable risk to the child": The Department of Community Services v "Rachel Grant", "Tracy Reid", "Sharon Reid and "Frank Reid" [2010] CLN 1 per Judge Marien at [61]. The appropriate test is whether there is an "unacceptable risk" of harm to the child: see M v M [1988] HCA 68 at [25].

28. Whether there is an "unacceptable risk" of harm to the child is to be assessed from the accumulation of factors proved according to the relevant civil standard, as discussed above: see Johnson v Page [2007] Fam CA 1235.

29. Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people.

30. Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136 of the Care Act). Section 137 of the Care Act defines what is meant by the term ‘authorised carer’. This includes the principal of a ‘designated agency’ and ‘a person who, in accordance with the regulations, is authorised as a carer.’

31. The conditions of authorisation are set out in clause 34 of Children and Young Persons (Care and Protection) Regulation 2012 (the ‘Regulation’), which include a requirement that the authorised carer ‘must comply with the code of conduct for authorised carers.’ The ‘code of conduct’ is defined to mean the code of conduct for authorised carers approved by the Minister. Clause 35 of the Regulation provides that the designated agency that authorises a carer under the abovementioned clauses must cause the person to be given a copy of the authorisation in writing and the authorisation must set out the conditions of that authorisation.

32. Clause 41 of the Regulation makes provision for the management of behaviour of children and young persons. Clause 42 makes provision for the cancellation or suspension of an authorisation of a carer. The clauses are in the following terms:

41. Management of behaviour of children and young persons

1. An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care:

   (a)   must not use:

   (i)   any physical coercion or physical punishment (including corporal punishment), or

   (ii)   any punishment that takes the form of immobilisation, force-feeding or depriving of food, or

   (iii)   any punishment that is intended to humiliate or frighten a child or young person, and

   (b)   must, in any event, use only behaviour management practices approved by the designated agency.

2. An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency.

3. On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed:

   (a)   by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or

   (b)   by changing the placement arrangements.

42. Cancellation or suspension of authorisations by designated agencies

A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:

(a)   is no longer a suitable person to be an authorised carer, or

(b)   has failed to comply with any condition of the authorisation, or

(c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or

(d)   has failed to comply with a written direction to the authorised carer by the designated agency or the Children’s Guardian under section 157 (3) of the Act, or

(e)   has failed to uphold the Charter of Rights prepared under section 162 of the Act.

33. S25A(1) of the Ombudsman Act 1974 defines ‘reportable conduct’ as:

(a)   any sexual offence or sexual misconduct committed against, with or in the presence of a child - including child pornography offence;

(b)   any assault, ill-treatment or neglect of a child;

(c)   any behaviour that causes psychological harm to a child even if the child consented to the behaviour. …

34. In the submissions of the Respondent, we note that it was the intention of the Respondent to consider cancelling the applicants’ authorisation pursuant to s137(2)(e) of the Care Act. However, pending the Tribunal’s decision in relation to this application, that matter was ‘put on hold’.

Issue

35. EGQ and EGS’s application filed on 25 March 2020 asks the Tribunal to review the Reviewable Decision made by the respondent to remove from EGQ and EGS the daily care and control of the Children. We must determine whether the Reviewable Decision is the correct and preferable decision having regard to any relevant factual material and any applicable written or unwritten law.

Evidence

36. The applicants’ evidence consisted of:

• Application filed 25 March 2020 (A1).

• Affidavit of EGS 2 July 2020 (A2).

• Affidavit of EGQ 2 July 2020 (A3).

We note the written submissions filed on behalf of the applicants.

37. The respondent’s evidence included:

• Affidavit of Ms Leah Bolton 30 April 2020 (R1)

• Affidavit of Ms Leah Bolton 10 June 2020 (R2).

38. The applicants and the respondent filed written submissions.

The reasons provided by the respondent for the Reviewable Decision

39. On 13 February 2020, the respondent wrote to the applicants giving notice that a decision had been made to remove from the applicants the daily care and control of the children. The grounds relied upon in the decision included:

1. on 11 September 2019 alternative care arrangements were made for the Children after EGS experienced a number of recurring seizures and was transported to hospital. EGQ was unable to attend the school to pick up the children also due to his own health reasons;

2. on 8 October 2019 the respondent received the carer assessment/review report completed by Spots & Arrows. The assessment was sought following recommendation from previous assessments and ongoing concerns about the care of the Children, namely, their medical and emotional/physical health needs; general state of the home; ability to work openly with the respondent, particularly in facilitating safe contact arrangements between the Children and their mother;

3. the assessment undertaken by Spots & Arrows recommended that the applicants not be authorised to provide short term or permanent care for their grandchildren because of their complex needs that will likely require ongoing and multiple interventions, accessing services and healthy guidance and role modelling to a high degree to support the Children’s development;

4. a number of additional recommendations were made, including for the applicants to be provided with the opportunity to understand and consider the findings and the recommendations of the report.

40. A number of reasons for this decision were included in the letter to the applicants, being:

1. the applicants’ assertion that their shared care for the Children would mitigate any risk posed by EGS’ seizures did not eventuate on the day. EGQ’s own health needs impacted the efficiency with which he could respond to the school and to his wife and grandchildren;

2. carers assessments and support services throughout the placement history have raised the concern on ongoing impact of the health of the applicants on any ongoing ability to provide practical care to the five children;

3. a more wholistic view of the placement needs for the Children includes assessment of all domains of the wellbeing, such as education, health and changing day to day practical support. Concerns are held by the respondent as to the applicants’ ability to undertake such an assessment and their rigid response to uptake training, support or changing parenting strategies which is documented throughout the casework notes.

Alleged conduct leading to the removal of the children

41. On 13 July 2018 a ROSH report was received by the respondent in relation to medical neglect. Following subsequent assessment additional issues were identified, including the unhygienic state of the applicants’ home and nutritional health concerns relating to the Children’s diet. It was noted in the assessment that EGS displayed a diminished intellectual capacity. During this assessment EGS discussed her own health concerns stating that she had previously been diagnosed with a type of Parkinsons, however, this had not been formally diagnosed, albeit she was prescribed medication. EGS stated that this condition can make her shake or collapse and requested from the respondent assistance with cleaning up the home.

42. On 21 February 2019, a Case Worker with the respondent spoke to the applicants during a home visit and advised that a carer assessment would need to be completed.

43. In June 2019 a Case Plan was completed for the Children. It was noted that each of the Children had individual needs requiring additional supports, including:

1. following assessments as recommended by the Paediatrician:

1. child A had an intellectual delay and required further support;

2. child B had struggled with behaviours, following assessments it was determined that he had a high level of hyperactivity/impulsivity and a global delay;

3. child D’s skill level was below that of her peers and she required follow up with a speech therapist’

4. child E had not attended a dentist since 2017.

44. The assessment further noted that the Children’s nutritional needs were not being met and a skip bin was required to assist cleaning up the applicants’ home.

45. On 11 September 2019, EGS had a medical emergency at the Children’s school. She was transported by ambulance to hospital and despite attempts for EGQ to attend to the care of the children he was unavailable. Enquiries on that day made with EGQ led to a decision for the Children to be placed with an alternate relative carer a maternal aunt.

46. Following the interim removal of the Children a Spots & Arrows consultant report completed on 8 October 2019 concluded that the applicants did not appear to have the cognitive, emotional and physical capacity in order to meet the Children’s needs across their development over time.

44. On 4 May 2020, a ROSH report was received by the Respondent relating to the physical abuse of child A, B, C, D and E. Child B disclosed that he and his siblings had been hit by the applicants. Child B also disclosed that his grandparents slept naked at night with child E and that his grandfather EGQ ‘would always be drunk’.

45. Further interviews were held with children B and C on 27 May 2020. During those interviews child B disclosed that EGQ had urinated in an apple juice bottle in front of the children and that they had unauthorised contact with their mother.

46. During a home visit on 28 May 2020, the Case Worker, Ms Bolton, said that EGS said her husband was asleep and she would not wake him. EGS conceded to the Case Worker that she had facilitated unauthorised contact between the Children and their mother. EGS denied allegations relating to physical abuse, EGQ’s excessive drinking, swearing in the home and sleeping naked with child E in the bed.

47. A Guardian Ad Litem was appointed for each of the Children between 16 June 2020 and 17 June 2020. Disclosures were made in relation to the applicants to the Guardian Ad Litem, including:

1. child A indicated that ‘they always slapped us on the legs or backsides’ and noted that ‘they didn’t look after us properly’;

2. child B indicated that the applicant (EGQ) used to call the children ‘mongrel dogs, sluts, … bastards. My grandparents would wander around the house naked and sleep naked. Nan and pop never had showers and never made sure we had showers’;

3. child D said that the applicants ‘used to smack us all the time when we lived there … they used to smack us with a wooden spoon’;

4. child C stated that she did not ever feel safe at nan and pop’s house because everyone except child E got smacked all the time (nearly every day).

Evidence of the applicants

51. Both EGQ and EGS have denied all allegations of physical abuse, excessive drinking and swearing at the Children.

52. There was no cross-examination of the applicants. It was incumbent upon us to make findings based on the documents submitted to the Tribunal alone.

The wishes of the Children

53. In a statement from the Guardian Ad Litem a Position Paper dated 26 June 2020 was put before the Tribunal. The Guardian Ad Litem indicates that he had spoken with each of the Children, their schoolteachers, support staff in schools, their current carers and the applicants.

54. The Guardian Ad Litem found that the applicants love their grandchildren and would like to keep the family unit together. However, the Guardian Ad Litem notes, having considered the evidence from Ms Bolton, that the applicants did not have a clear understanding of the impacts of neglect and trauma that each of the five children had experienced.

55. He also submits that it was obvious that the Children’s nutritional needs were not being met, their teeth were in poor condition and neither grandparent was prepared to take them to a dentist even where it appeared urgent work was required, particularly with the two older boys child A and B. He noted in the affidavit evidence of the Case Worker that bedlinen was unhygienic for both EGQ and EGS and that they had significant health issues.

56. In relation to each of the Children’s views the following was found:

1. Child A told the Guardian Ad Litem he would like to live with his current carer until he is 18. He said he was worried about returning to the applicants’ house because ‘they slapped us on the legs or backsides’. Child A also indicated that EGQ had ‘sneaked all the kids in the car to see mum at Campbelltown at Christmas before last’. Child A told the Guardian Ad Litem that his grandparents did not look after us properly, they did not have regular showers at night and they were told not to tell the DCJ case worker anything about their house or personal life. Child A liked seeing his brother and sisters at the weekends or at birthday parties and in his view it is better to stay with his current carer than change that arrangement.

2. Child B told the Guardian Ad Litem that he had been good at school since he had moved in with his current carers. He said his current carers do not swear at himself and his siblings like the applicants did. He said they used to call us mongrel dogs, sluts, etc. When referring to his sister child E he said that child E would wander around in her nappies and she would ‘pee over the couches’. Child B said that his sister was not toilet trained and his grandparents never had showers and never made sure that ‘we had showers’ ‘it was gross’. He said ‘I do not want to go back and live with nan and pop every again. I would prefer to run away. It’s said because I love my nan and pop. I would just like to see them once a month or something like that’.

3. Child E told the Guardian Ad Litem that she would like to stay with her current carer because she likes her cousin who is one year old. She misses her nan and pop and loves them very much. She said her dad was in gaol but now he was out.

4. Child D told the Guardian Ad Litem that she did not want to live with her nan and pop again. She said ‘they are lovely grandparents but used to smack us all the time when we lived with them. They used to send us to our room for no reason’ and it is better living with the current carer than being with the applicants.

5. Child C told the Guardian Ad Litem that she did not ever feel safe at her nan and pop’s house because everyone except child E got smacked all the time (nearly every day). She referred to eating lots of McDonalds, Pizza Hut, Hungry Jacks and fizzy drink whilst at her grandparents’ house. With her current carer takeaway is only purchased on special occasions, if the carer is running late or there is a surprise such as a birthday. She described her current carer cooking all of her food by hand which was unlike that which her nan cooked, referring to it being frozen food only. The house is described by her as always being messy and there was no technology at nan and pops and they had no choice over television shows that they watched. At times they watched MA rated shows or were told to go to bed by the applicants. Child C confirmed that child E was never toilet trained and the house in which they lived with the applicants was untidy.

57. The Guardian Ad Litem spoke with teachers at the three schools where the children attend. The teachers and schools had major concerns in relation to child A and B and child A’s mental health at the time of the interview.

58. In summary, the Guardian Ad Litem submits that he understands the desire for the applicants to have all children living together as a family. However, after reading all of the documentation provided to him, which included the evidence of the respondent, and taking into account the stated wishes of each of the five Children, their teachers and current carers, he submits that the decision of the respondent should be affirmed. It is important to note that the Guardian Ad Litem recognises the love and affection the applicants have for each of the grandchildren but notes the deficiencies in their ability to appropriately provide day to day care for each of them.

Our Consideration

59. We have taken into consideration the denial as set out above by the applicants. We have placed particular weight on the findings made by the independent investigation as evidenced and set out in the Spots & Arrows report. We have placed considerable weight on the submissions of the Guardian Ad Litem and particularly the wishes of each of the children each of them not wanting to be restored to the care and control of their grandparents.

60. We have no doubt that the applicants love and have great affection for each of their grandchildren. However, in exercising our role to ensure the paramount health, wellbeing and safety of the children, we are not satisfied that the applicants are able to adequately provide the high level of care required for each of the five Children as set out in the report of Spots & Arrows.

61. We make positive findings with regard to the less desirable care provided by the applicants in terms of nutrition, access to health care, discipline and hygiene of each of the Children as alleged. We accept the views of the Children that they were more likely than not disciplined by their grandparents, which included smacking. The admission of EGS that unauthorised visits with the Children’s mother occurred in breach of orders of the Children’s Court counts against the applicants.

62. When weighing all of the evidence, the investigation results of Spots and Arrows, and the findings of the care workers overall, we find there is an unacceptable risk to all of the children should they be restored to the care of the applicants.

63. Overall we find, having considered all of the evidence before us, that the decision of the respondent made on 14 October 2019 should be affirmed.

64. We order accordingly.

Order

1. The Decision of the Respondent made on 14 October 2019 is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 November 2020