GS v Department of Communities, Child Safety and Disability Services
[2014] QCAT 602
•11 November 2014
| CITATION: | GS v Department of Communities, Child Safety and Disability Services [2014] QCAT 602 |
| PARTIES: | GS (Applicant/Appellant) |
| v | |
| Department of Communities, Child safety and Disability Services (Respondent) |
| APPLICATION NUMBER: | CML127-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 23 and 24 July 2014 21 August 2014 Final submissions |
| HEARD AT: | Toowoomba |
| DECISION OF: | Member Ford Member Goodman |
| DELIVERED ON: | 11 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave is granted for GS to withdraw her review application to restrict contact between her son, GR and herself. 2. The tribunal confirms the decision made by the Department on 20 September 2013 to reduce contact between GS and her children SH and SJ. |
| CATCHWORDS: | Where contact restricted between parent and children in care – where review sought – where applicant identifies as indigenous – whether best interests of children are served by reducing contact. Child Protection Act 1999 (Qld) ss 5A, 5B, 5C, 6, 87(2), 99(C), 99D Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 24, 29, 43, 95 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms GS Represented by Ms Alison Glanville solicitor |
| RESPONDENT: | Ms Sharni Salmi and Ms Tracey Barrett for the Department Ms Emma Kyle, Public Guardian, represented GR (child) |
REASONS FOR DECISION
Ms GS loves her three children, SJ aged 1 ½ years old, SH aged 4 years old and GR aged 10 years old. These children are in care of the Department due to a history of child protection concerns. SH has been in care since she was 6 months old and SJ since she was 5 days old. Ms GS has not had full time care of her children since December 2011.
The children live with kinship carers Mr GG and LA. Mr GG is Ms GS’s brother and there exists a fractious relationship between the two siblings. Ms GS lives with her partner Mr SR and he is the father of SJ and SH.
Ms GS had attended special school when she was young and has difficulty with reading and writing. She found out she was indigenous from an Aboriginal support worker in the court system when she was appearing for a shop lifting offence at age 13 years. Her brother does not identify as indigenous. Ms GS has a child protection history herself, having been removed from her family at age 12 years.
The child protection history relating to Ms GS’s children evidences a consistent pattern of neglect with repeated themes of unhygienic living conditions, a lack of developmental stimulation and general parenting issues. Further concerns relate to a domestic violence history, anger management issues regarding Mr SR and limited parenting skills.
There are two contact decisions of relevance to this matter. The first decision was made on 4 June 2013, which triggered the review application by Ms GS. Ms GS was seeking “immediate increases to contact times for the mother to four times per week, gradually increasing to overnight time with baby SJ; and immediate increases to contact times for mother to four to five times per week for SH and GR”.[1]
[1]Application for Review dated 4.7.2013.
Subsequently, on 20 September 2013 the Department made a further decision restricting contact between the children and Ms GS.
The review application relating to GR was resolved at the beginning of the tribunal hearing after an agreement was reached between the parties. GR’s views were presented to the tribunal by the Public Guardian’s representative, Ms Emma Kyle. Effectively, GR was seeking more contact with his mother and the Department respected his views and wishes. The tribunal granted leave for Ms GS to withdraw her review application relating to GR.
At the hearing, clarification was sought from Ms GS as to what level of contact she was now seeking with her daughters. It was ascertained that the level of contact Ms GS is now seeking is as follows: a. supervised contact each Monday at the contact centre for 1.5 hours between Ms GS and SJ; b. supervised contact each Tuesday at the contact centre for 2 hours between Ms GS, SJ and SH.
Ms GS was not seeking contact for Mr SR, clarifying her review application relates to restoring contact between herself and her children.
What are the concerns expressed by the Department and other witnesses leading to the restriction of contact between Ms GS and her daughters, SJ and SH?
Significant evidence was provided to the Tribunal by Departmental staff, professionals and support workers who care for the children. The Department acknowledges that Ms GS loves her children but they must focus their efforts and their decision making on the safety, wellbeing and best interests of the children.[2] The Department is also mindful of the additional principles for Aboriginal and Torres Strait Islander children whereby a child should be allowed to develop and maintain a connection with the child’s family, culture, traditions, language and community, taking into consideration the long term effects on a child’s identity.[3]
[2]Child Protection Act 2009 (Qld) s 5A.
[3]Ibid s 5C.
The decision of 20 September 2013 to restrict contact was based on a number of factors. Ms GS was connected in with a Family Intervention Program to support and to assess the viability of case planning aimed at reunification.
By September 2013, the staff of the Family Intervention Program had assessed that contact could not occur safely away from the supervised contact centre. GR was opposed to having contact with Mr SR. SH struggled to separate for contact and regularly sought to finish contact early. SJ displayed these behaviours as well but to a lesser extent. For these reasons, the focus of case planning shifted from reunification to long term planning. Contact arrangements were seen in a different light as well, with the focus on contact being consistent with long term out of home care goals.
Ms BM, Acting Co-ordinator of the Program submitted the following concerns from her own observations and feedback from other program staff:
a) The poor level of interaction and emotional quality to contact between Ms GS and SH and SJ;
b) Ms GS was observed to revert to prior behaviours in the absence of program support staff, even though she had demonstrated some improvement to the level of interaction with the children with this support and modelling;
c) There was a probable risk of harm primarily to the children’s emotional wellbeing and development for the reasons above;
d) Contact should remain supervised.
Ms GS had completed an ABC parenting course run by another service and a further EL program again with Ms RM in late 2013. No changes in parenting behaviour were evident.
Ms GS has admitted rejection of SH and SJ when first placed in care would have an enduring consequence for the children. In evidence, the contact centre supervisor, Ms WK spoke of both girls acting out physically toward Ms GS. Ms GS had also stated she “did not say anything” if the girls asked for the carer, Ms LA, at contact.
The Department was mindful that Ms GS acknowledged feeling sad when the girls referred to the kinship carers and that she was learning to accept their attachment to them.
Ms BC, a psychologist, had undertaken an assessment for the Separate Representative for Children’s Court proceedings. This report was provided to the tribunal. She gave oral evidence to the tribunal. She had observed SH becoming distressed and trying to leave contact, with Ms GS not giving her comfort. She noted Ms GS became irritated. Ms WK had also observed Ms GS becoming frustrated and agitated with the girls, requiring intervention.
Ms WK provided further evidence that Ms GS still struggled to read the children’s emotional cues, to set boundaries and to follow through. The examples given by Ms GS, as things she had learned to do differently, were reported by Ms WK as examples of where support and modelling had occurred, but with little to no demonstration of change. She observed that Ms GS most often lies down in the playroom and just watches the girls. Ms WK had supervised the contact for some 1 year and 9 months.
Ms WK reported increased distress in separation from the carer by SH in 2014. SH clung to the carer and she would scream when left. She would go straight to the playroom, rather than to her mother, demonstrating detached behaviour. Ms D, the child safety officer, reported that separating from the carer was not a problem in other domains, such as at day care.
The Department considered that if contact was of a positive emotional quality than separation issues should have settled, or certainly not escalated, given the regular contact time Ms GS had had since the children went into care.
Ms D did not have the same length of contact experience but reported that Ms GS was not attuned to the girls’ cues or what should be expected of toddlers, such as keeping them at a table for a long period, when a play area was close by. They would become unsettled and move away only to be returned by Ms GS to the table.
There was no evidence that the carers adversely influenced the children’s views regarding contact. Ms G, the Community Visitor, observed no behaviour to report in that regard.
The carers do not identify as indigenous. The Goolburri Recognised Entity representative, Ms MK, supported the level of contact with Ms GS, as operating from the decision of the 20 September 2013. She is of the view that this contact maintains the children’s family and cultural connections while they are in the care of the Department.
Of significance is that Ms BC recommended reducing contact to fortnightly with consideration of a three-month review to determine whether a further reduction in contact, such was her concern for what occurred in the contact regime.
What are the submissions by GS regarding increased contact?
Ms Allison Glanville acting on behalf of Ms GS provided submissions to the tribunal. The context of these submissions are as follows:
Ms GS was very pleased that the Department acknowledged GR’s wish to have more contact with his mother.
She was very emotional about SJ being removed from her at birth. She felt let down by the Recognised Entity organisation, as she believed they had told her SJ would not be taken from her when she gave birth. She was hurt and angry when SJ was taken from her at the hospital.
The adequacy of Ms BC’s report and recommendations are challenged. It is attested that any recommendation of contact should be made observing the children over a significant period, in a setting and regime familiar to the children. This was not the case with Ms BC’s assessment. Anything outside of such a comprehensive observation would result in children’s behaviours being judged as restless and heightened and a mother always judged as having limited parenting skills, when contact is limited to 1 – 2 ½-hour contact per week.
The Department’s witness from the Family Intervention Service had unfortunately grouped the girls together rather than considering their behaviours and stages of growth separately. Thus, the tribunal was not assisted in understanding the differing needs of the girls. SJ is 15 months younger than SH.
The evidence from Ms WK was that Ms GS had tried to implement strategies she has learned from her courses, including time out. She provides appropriate food and drink and checks nappies and changes when necessary. She is generally positive about the contact she observed. Ms WK’s repetitive notes do not assist the tribunal in seeking accurate information about the contact.
The contact regime evidence presented by Ms D, the CSO, was informed by reports she read and discussions with Ms WK and the carers. She had not attended the carers’ home to observe the girls’ behaviours before or after contact. She had not witnessed their behaviour when being collected from day care either. She had not seen Ms GS alone with the girls.
Ms BM’s report portrays positive observations of Ms GS’s behaviour toward the girls, the children are happy to see their parents and Ms GS was mostly aware of their whereabouts throughout the 1.5 hours contact, with few cancellations.
Ms RM, who ran to courses attended by Ms GS, had reported attendance at every session, although their understanding around some concepts were more simplistic than others. The parents had participated wholeheartedly around various topics.
The decision by the Department to reduce contact was premature and without merit, occurring four months before their filing an application for long term guardianship. Reunification had been the case plan goal.
The girls spent a significant amount of time at day care. This is time they should be with their mother. They would adjust to the routine with their mother, as they have at day care where they have settled into a routine.
No evidence has been produced by the Department to prove that the children suffered any detrimental effect of a significant nature on their emotional wellbeing, as a result of contact with their mother. They may have experienced limited anxiety, but they had been supervised at all times since being in care.
The principles of the Act collectively emphasises the importance of a child’s relationship with the family and actions taken should be the minimum necessary to ensure their protection.
Increasing contact should be allowed to ensure the girls are exposed to culture and tradition, language and community, as their carer and brother of Ms GS, Mr GG, does not identify as an Aboriginal Australian.
There is no assumption that contact was reduced because it was reasonably practicable in the circumstances for the parents or family member to have contact (CPA s 87(2). The Community Visitor, Ms G, had advised the tribunal that she did not believe Mr GG, as carer, would not be able to accommodate any further increase in time.
Effectively, the Department has breached s 87(1) of the Act. That is, they failed to “provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances”.
No inference can be drawn from the material that the children’s wellbeing or safety was compromised because of contact between Ms GS and her children. It is assumed that the decision to reduce the contact between Ms GS and her children was made in the children’s best interest, even though the evidence does not support the decision.
Ms GS seeks only to have the previous contact reinstated. She was seeking an additional 1 1/2 hours contact with both children to that which was currently in place.
What are the positives in this matter?
Ms GS has learned from a parenting course that ‘time out’ is sometimes a suitable behaviour management strategy, albeit having difficulty in identifying other strategies;
Ms GS feels she has been heard by the Department in that GR’s request for more contact has been accepted by them;
Ms GS has no difficulty in expressing her love for her children to adults, while still needing to learn how to demonstrate this love to her children in appropriate ways;
Ms GS brings healthy food to the contact visits and she is mindful that small children can be fussy eaters;
Ms GS is open to receiving help from Ms WK about setting boundaries for the girls and acknowledges that they are better behaved when GR is not present as well;
Ms GS identifies as indigenous and she is in a position to provide information about that cultural aspect as her children mature, given their carers do not identify as indigenous;
Ms GS has demonstrated she is able to respond to toilet visits and nappy changes and organise snack time;
Ms GS remains committed to working with the services to improve her parenting and acknowledges she needs concrete help;
What are the negatives for Ms GS in getting increased contact with her children?
Ms GS needs assistance with understanding complex concepts and needs a lot of support to have issues explained in a concrete manner;
Ms GS did not acknowledge her role in how the children came to be in the care of the Department;
Ms GS has struggled to understand and retain bonding skills in order to meet the emotional needs of her children;
Ms GS shows a lack of confidence in demonstrating her knowledge of all but basic physical needs of both SJ, who spent five days in her care, and of SH who spent 6 months in her care;
Both SJ and SH are not coping with the current contact regime and therefore may be further stressed if they were required to stay longer;
Ms GS has had trouble coping with the different demands of the children when all three had been together;
Ms GS does not read the cues she is given by the girls very well and gets frustrated and agitated herself, therefore inflaming the situation;
The girls are threatened with time out regularly during contact;
The girls are seeking to leave contact earlier than the prescribed time each week.
The tribunal’s decision
The tribunal accepts that Ms GS loves these little girls. SH and SJ were removed from her care without Ms GS being able to parent them extensively and for them to develop attachments as GR may have done. GR has a different relationship to his mother than his sisters and he is able to articulate the degree of contact he wants with GS. His views have been respected by the Department, leading to GS seeking leave of a review of contact relating to GR.
The girls were removed as babies due to significant child protection concerns. They are in the care of the Department for valid reasons. The Department committed to a process of reunification under a short-term order made in the Childrens Court. The decision to apply for a longer order was only made after significant efforts were made to support Ms GS and her partner to address their parenting and personal issues.
The evidence supports the Department’s contention that contact, as observed, lacks emotional warmth, quality interactions and stimulation and effective management of the children’s behaviour. The tribunal accepts that the decision made by the Department was driven by an accumulation of observations over time.
It is appreciated that Ms GS benefits from practical concrete instructions. However, the evidence is that she struggles to maintain a commitment to enacting strategies she has learned. The evidence from both departmental and independent services workers is consistent. Courses and intensive support have not markedly increased Ms GS’s child focussed engagement with her little girls.
The ability to discuss conceptually the impacts of early positive attachment would be a potential challenge for Ms GS. She has not demonstrated appropriate insight into why the children are in care nor why they need more directive age appropriate parenting. The tribunal is concerned that she may not be able to understand, nor articulate, the impact on her girls’ attachment to her, being removed as very young babies. These girls do not have the same level of contact with nor attachment that GR has had with his mother.
The Children’s Court has not made a final determination with respect to the long-term order applications. The Tribunal’s deliberations are not based solely on the recommendations of these applications. The tribunal appreciates that contact is adversely affected when reunification is no longer a considered goal of the Department. It does take into consideration some evidence included in the applications to the Court, including that of Ms BC, the report writer for the Separate Representative.
The Tribunal is not satisfied that increasing the current contact is in the girls’ best interests. The focus needs to be on how well the girls cope before, during and after contact and how they relate to their mother. The tribunal does not have a picture of children displaying positive attachment, engagement or participation with Ms GS. Ms GS finds contact hard herself, with her own emotional needs impacting adversely on her insight into her daughters needs when she is stressed.
These children are in need of a stable nurturing environment, which is currently provided by their uncle and his partner, who are their kinship carers. They are in need of a positive attachment with these carers in order to feel secure. The evidence is that the girls display behaviours not in keeping with feeling secure in all contacts with Ms GS (and her partner).
The tribunal considers however that the Department needs to focus more on their mother’s identity as an aboriginal woman. Their uncle does not identify as indigenous but cultural considerations must be honoured as part of Ms GS’s familial expression. Relying solely on contact with Ms GS to nurture their cultural heritage is not adequate. In the future supervised contact could include opportunities for Ms GS to take her girls to specific cultural events for example.
Ms GS has two small children who do not demonstrate the same level of attachment to her as her son GR. They are too young to articulate their views. Their behaviours are not demonstrative of children having positive contact experiences with their parents, including Ms GS. The comprehensive support and intervention provided to Ms GS has not in turn provided her with the skills to identify and to enact strategies of a more meaningful nature to improve on contact. This is not for the want of the Department trying. Ms GS’s capacity to learn these skills and to enact them is challenged by her level of understanding of the concepts and her ability to articulate them. Ms GS needs concrete examples to guide her, but fails to maintain what she has learned, falling back into ‘old ways’. This situation is not conducive to a positive contact regime for either of the girls.
The tribunal confirms the decision of the Department made on 20 September 2013.
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