GJMC v Department of Communities (Child Safety Services)

[2011] QCAT 176

CITATION: GJMC v Department of Communities (Child Safety Services) [2011] QCAT 176

PARTIES:	GJMC
v
Department of Communities (Child Safety Services)

APPLICATION NUMBER:   CML044-11

MATTER TYPE: Childrens matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 3 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Application for review is dismissed.

CATCHWORDS: 

CHILD PROTECTION – decision to remove a child from carer – not an approved kinship carer – no right to seek review of decision – application lacks substance – early end to proceedings

Queensland Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. GJMC has lodged an application in the tribunal seeking to review a decision made by the Department of Communities (Child Safety Services) to remove B from her care.  GJMC is the grandmother of B.

2. GJMC had held a certificate of approval as a kinship carer for B from 28 June 2007 to 28 June 2009.  The approval lapsed and GJMC did not seek to renew that approval until 22 October 2010 when she lodged a fresh application for approval as a kinship carer.  That application was not successful and GJMC has lodged a separate application in this tribunal (CML030-11) to review the decision to reject her kinship carer application. 

3. In the meantime, B had left the care of GJMC on 2 September 2010.  On 14 October 2010 the department sent a letter to GJMC notifying her of a decision to remove B from her care.  That letter also contained information about review rights if GJMC wanted to challenge the removal decision.  GJMC has purported to exercise those review rights in lodging this application (CML044-11).  

4. The department has subsequently filed an application with the tribunal seeking a dismissal of the review application (CML044-11) on the grounds that the tribunal has no jurisdiction to review the department’s decision to remove B from the care of GJMC in October 2010.   

5. A copy of that application and written submissions in support have been sent to GJMC and to her legal representative and she has been asked to provide a written response to the dismissal application.  No response has been received from her or on her behalf from her legal representative.

6. The department submits that there was an inadvertent but fundamental error in its letter sent to GJMC on 14 October 2010 in that GJMC did not in fact have any right to seek a review of the decision made to remove B from her care.  It is submitted that GJMC was not an approved carer as at 14 October 2010.  As such it is submitted by the department that there is no statutory right in any person to review a decision to remove a child in the long custody of the department from a person who is not an approved carer.  Although the department had come to the realisation that GJMC was not an approved carer in mid 2010, that information was overlooked at the time that the decision letter was written on 14 October 2010. 

7. An analysis of the relevant legislation reveals that section 89 of the Child Protection Act 1999 provides that the chief executive of the department can decide to remove a child from the care of the child’s carer if that decision is in the best interests of the child. Section 91 of that Act provides that the child’s carer is entitled to have reviewed the decision to remove the child.

8. However, the definition of carer in the Act means the person in whose care the child has been placed under section 82(1) of the Child Protection Act 1999.When the list of persons in section 82(1) of that Act is examined, these persons must hold some specific approval for providing care and are approved kinship carers, approved foster carers or provisionally approved carers. A person who is not specifically approved as a carer by the department is accordingly not within the category of persons listed as carers in section 82(1) of the Child Protection Act 1999.

9. The tribunal finds that GJMC was not an approved kinship carer on 14 October 2010. The tribunal is satisfied that she could not exercise any review rights under section 91 of the Child Protection Act 1999 of the decision to remove B from her care as she was not an approved carer at the time that decision was made. The tribunal concludes that the application lodged by GJMC to review that decision lacks substance and in the view of the tribunal that application by GJMC should be dismissed.

[10]  One further associated matter requires to be determined at this stage.  The president of the tribunal had given his permission for GJMC to file the application to review on behalf of B.  The department has submitted that there is no jurisdiction to enable B to bring this review application on grounds similar to the matters set out in paragraphs 7 to 9 of these reasons.   

[11] In essence, as GJMC was not an approved carer at 14 October 2010, it is submitted that the decision to remove B from her care was not a decision made under section 89 of the Child Protection Act 1999 to remove a child from an approved carer. As such it is submitted that the decision made on 14 October 2010 is simply not a reviewable decision.    

[12]  The tribunal accepts that submission and concludes that the decision made on 14 October 2010 to remove B from the care of GJMC is not reviewable by the tribunal.  The application for review cannot be brought on behalf of B, the application lacks substance and must be dismissed. 

[13] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The tribunal considers that the review application should be brought to an early end so that full attention can be given by the parties to the other review application (CML030-11) that is brought within the jurisdiction of the tribunal.