HMD v Department of Child Safety, Youth and Women
[2020] QCAT 272
•14 July 2020
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: HMD v Department of Child Safety, Youth and Women
[2020] QCAT 272
PARTIES: HMD (applicant) v DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN (respondent) APPLICATION NO/S: CML019-19 MATTER TYPE: Childrens matters DELIVERED ON: 14 July 2020 HEARING DATE: 19 February 2020 HEARD AT: Brisbane DECISION OF: Member Paratz AM Member Ellis
Member Quinlivan (Presiding Member)
ORDERS: Pursuant to section 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of Department of Child Safety, Youth and Women made on 18 December 2018 to refuse HMD’s application as a kinship carer for the child AR is set aside and the matter is to be returned to the Department of Child Safety, Youth and Women to reconsider their decision.
DIRECTION:
The Department of Child Safety, Youth and Women are to consider granting HMD a time-limited role as a respite carer for a period of two to three days per fortnight, with such other conditions as the Department of Child Safety, Youth and Women considers appropriate to protect the child AR from unauthorised and unmanaged contact with her mother AH.
CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – GENERALLY – where
review of Department decision to refuse approval of great
grandmother as kinship carer – where failure to follow Department’s Direction – role and behaviour of child’s mother – where acknowledgement of role of great grandmother in child’s life – consideration of meaning of “suitable person” – whether prospect of reunification
Child Protection Act 1999 (Qld), s 135
Human Rights Act 2019 (Qld), s 4(b), s 4(f), s 58(5) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1)
Child Protection Regulation 2011 (Qld), reg 23
APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Tim Ferguson, Court Services advisor, Department of Child Safety, Youth and Women
REASONS FOR DECISION
Background
This is an application by HMD seeking a review of a decision made by a delegated decision maker who was the manager of the relevant Child Safety Service on 18 December 2018. The Manager refused an application by HMD seeking to become a kinship carer for the child AR who is her great granddaughter. AR is subject to a Child Protection Order granting short-term custody to the Chief Executive until 14 September 2020.
Previously, the Manager had made a decision on 24 September 2018 placing the child in the care of DJ and DR.
On 5 October 2018, the child’s mother, AH (who is HMD’s granddaughter) lodged an application to review that decision.1
AH sought that the child be placed in the care of HMD. The application was put on hold until HMD’s status as a kinship carer was determined and the outcome of the “refusal” review was known.
In these proceedings, HMD seeks that the Tribunal set aside the decision refusing her kinship carer approval. The Department seeks confirmation of the decision to refuse HMD’s approval as a kinship carer.
The applicant filed the following material:
(a)Review Application of HMD filed 10 January 2019, seeking that the Manager change his decision and accept the applicant’s application to be a kinship carer for AR and to work with AH to be re-united with her daughter AR;
(b)Statement of HMD dated 22 November 2018;
Application no. CML288-16.
(c)Letter dated 5 April 2019 attaching Statement of HMD dated 4 April 2019;
(d)Letter dated 13 April 2019 attaching Statement of AH dated 11 April 2019;
(e)Statement of HMD dated 15 August 2019;
(f)Statement of HMD dated 8 January 2020;
(g)Statement of HMD dated 30 January 2020;
(h) Statement of DCL dated 2 February 2020; The Department filed the following material:
(a)Statement of Reasons by KP dated 6 March 2019;
(b)Updated Statement by the Manager dated 8 August 2019;
(c)Witness statement of CH affirmed 28 January 2020;
(d)Reviewable decision letter dated 31 January to applicant regarding contact.
At the hearing on 19 February 2020 the applicant gave evidence that she believed that she could care for the child until she is 90 years old. She pointed out that the current carers are 55 years old, that is not young, and they would be 71 years old on AR’s 18th birthday. She emphasised that the main thing was for the child to be with family and that she would be happy to help if AH was reunited with AR.
The applicant also stated that she had been staying in a hotel on the Gold Coast with AH trying to get accommodation with support from an outreach service. She advised that AH was on probation that involved weekly reporting and drug testing.
According to the applicant, she has been AH’s only support. AH’s mother has schizophrenia and lives elsewhere in Queensland.
The applicant said that while she has helped AH, she has also placed restrictions on AH previously and AH has made a lot of effort but if that changes then her support will stop. She emphasised that AR will always come first. She claimed that she wants to work with the Department. However, she appeared unable to reconcile her behaviour with the apparent concerns of the Department as to why she did not comply with a reasonable direction.
The applicant expressed frustration over her dealings with the Department particularly with reference to an incident that occurred in late September 2018 when it was alleged that she had failed to comply with a reasonable direction by the Department and had not handed over AR when requested. The applicant justified her actions on the basis that there was a breakdown in communication, and she felt that she needed to get urgent legal advice.
The applicant pointed out that she had cared for AH for 12 years when she was in care and the Department had always been happy with that care.
A Kinship Carer Initial Assessment Report was prepared by Social Care Solutions on 19 November 2018. The Report was relied on by the Department and the report writer gave evidence.
Based on the legislative requirements and the Report, the Department determined that HMD was not a suitable person to be approved as a kinship carer for the following reasons:
(a)During a meeting on 21 September 2019, she failed to disclose that she had planned to collect the child from her respite placement early.
(b)The early collection of AR was not authorised by the Department.
(c)When requested to bring the child to a Child Safety Centre she indicated that she would but failed to do so.
(d)Numerous attempts were made to contact the applicant by telephone to advise the applicant that her Provisional Approval Certificate had been cancelled and to check on the child’s welfare, which were unsuccessful.
(e)Departmental officers attended at the applicant’s home but despite clear evidence of the applicant’s presence in her home she did not engage with the Departmental officers.
(f)Subsequently the applicant left her home with the child resulting in the child being listed as a missing person.
(g)Despite numerous phone calls over an eight hour period the applicant did not produce the child until 11.40pm at a local Police Station.
(h)The Department concluded that the applicant was not able to work collaboratively with the Department and this cast doubt on her ability to prioritise the needs of the child above her own emotional needs.
(i)The Department concluded that while there was no doubt that the applicant loved AR and was willing to care for her, “the complex set of dynamics in (her) household would not be a safe environment for (AR)”.2
The Report writer gave evidence at the hearing and was challenged by the applicant who argued that there were numerous inaccuracies in the report and questioned whether she had a conflict of interest. The Report Writer denied any conflict of interest existed as a result of her previous work with the Department and stated that the Report was accurate and based on discussions held with individuals and staff from the Department.
What is HMD seeking?
In her final submissions dated 7 March 2020 the applicant challenged a number of matters contained in the Department’s final submissions.
She acknowledged that the Department’s preferred role for her is as AR’s great- grandmother because of her own age, AR’s young age and assisting AH with her drug addiction. Further she would be more able to perform this role without the Regulation of Care Framework which involves more vigilance, oversight and regular assessments. However, she submits that if the Department can trust her with unsupervised contact, then not allowing AR to have contact with her mother and following their Rules should not be a problem.
In her submissions the applicant demonstrated that she did not understand the process at the hearing with respect to AH attending as her support person and being unable to
Decision Letter from Department of Child Safety, Youth and Women, dated 18 December 2019 at page 3 paragraph 3.
give evidence, and the fact that none of her witnesses were required for cross- examination and as a result their evidence was admitted.
With respect to the matters set out in Section 135 of the Child Protection Act 1999 (Qld) (“the Act”) the applicant submits that she is AR’s great grandmother. She is a suitable person. She lives by herself. She can meet the standards of care in the Statement of Standards. She served 12 years of service as Kinship Carer for her granddaughter AH (AR’s mother). She is able to help in achieving plans for the child’s protection.
She also states that AH is not living with her and was not living with her at the time of the application. AH’s paternal grandmother is now in permanent residential care in central Queensland.
In relation to being a “suitable person”3 to be an approved kinship carer, the applicant submitted that she does not pose a risk to the child’s safety, she is able to protect the child from harm, she understands and is committed to the principles of administering the Act. She has completed any training that has been required by the Chief Executive.
She states that she has been employed for 12 years as an accounts and salaries clerk. She has owned and managed several businesses. She enjoys good mental and physical health. She does not have a Police Record.
In addition, she contended that the Department has not given her credit for her efforts with respect to AH and instead have turned all the good she has done against her. She denied being an “apologist” for AH and argued that she has simply given her the benefit of the doubt on occasions leading to her being let down badly. She admitted to being “appalled” by AH’s behaviour.
She pointed out how well presented AH had been at the hearing only to disappoint everyone by using drugs that evening.
With respect to her ability to work effectively with the Department, the applicant denied that she was engaging in evasive behaviour. She argued that the Department had been underhanded in relation to the recovery of AR and that their plan had backfired. She claimed there was nothing in writing about picking AR up. She justified her position by pointing out that she had gone to the Police Station for advice as it was too late to speak to a solicitor. She was subsequently allowed to take AR home with her after meeting with Departmental staff.
She suggested that it could be argued that the Directions she received were not reasonable. She submitted that the Directions were definitely not in AR’s best interests and she was trying to protect “(AR) from the trauma she has now suffered from being cruelly and abruptly removed from (her) care”.
The applicant continued to maintain that the evidence of the Department is contradictory, and that the Report writer’s assessment was flawed and a conflict of interest.
The applicant then stated “At present, I am only playing a great grandmother role, not a Kinship Carer role. Therefore, I am allowed to have a life including holidays if I so wish”. She continued that “If the Department were to consider granting a time limited
Child Protection Regulation 2011 (Qld), regulation 23 (“Child Protection Regulation”).
role as a respite Kinship Care (sic), this decision would contradict all the negatives they have stated”.
In her closing submissions the applicant confirmed her belief that it is in the best interests of AR for her to be brought up by family, namely herself.
She continued to criticise the Report, describing it as unprofessional and inaccurate.
She stated that the Department of Child Safety had decided in July 2019 that she was too old to be a Kinship Carer. As a result, she accused the Department of having an Agenda to have AR brought up in foster care.
She admitted to having a good working relationship with CH from the Child Safety Office but was critical of the deterioration of her relationship with the carer DJ, stating that she was jealous of her relationship with AR.
The applicant claimed that there are a lot of anomalies in the Department’s reporting that should be looked at more closely in controversial cases.
She stated that:
By promoting me as a great grandmother the Department are in fact saying:
a)I am an important person in (AR)’s life.
b)I can be trusted to keep (AR) safe.
c)I live by myself and therefore there is not anyone else to consider.
d)I meet the standards of care.
e)I have followed the Department’s instructions.
She submitted that her age should not exclude her from caring for AR full time. It is much more preferable that she and AR have some time together as a family.
Finally, she submitted that “the evidence before the Tribunal is sufficient to persuade the Tribunal that the correct and preferable decision is to accept (her) Kinship Carer Application for (AR) (her) great granddaughter.”
She insisted that she is able to perform this role better than DJ and DR with the true devotion of a family member. She maintained she will always put AR’s best interests first, keep AR safe, love and cherish her for the rest of her own life.
What is the Department’s position?
The Department confirmed that prior to the decision to refuse HMD’s application for approval as a Kinship Carer, a decision had been made on 24 September 2018 placing AR in care of DJ and DR.
AH was advised of the decision on 26 September 2018 and she subsequently applied for a review (CML288-18) of the decision on 5 October 2018.
AH sought that AR be placed in the care of HMD. That matter has been held in abeyance pending the outcome of HMD’s review application.
The Department seeks that the Tribunal confirm the original decision to refuse to approve HMD as a kinship carer.
In seeking that outcome, the Department emphasised that:
it would be inaccurate to mischaracterise the contest before the Tribunal as one involving a simple binary opposition which effectively re-interprets or re-casts the issue of the granting or refusing of approval as something that will determine whether or not (HMD) will have a relationship with her great granddaughter.
Put simply, the Tribunal takes this to mean that the Department’s position is to promote and encourage HMD’s relationship with AR as her great grandmother.
The Department stated that it is their assessment that “(HMD) could more easily perform this role as opposed to the role of a kinship carer in which she would be subject to the Regulation of Care framework which involves considerably more vigilance, oversight and regular assessments to obtain re-approval”.
In coming to this position, the Department stated that it considered HMD’s age, AR’s very young age, and HMD’s role in assisting AR’s mother with her various acute personal difficulties.
The Department pointed out that when considering a Review Application, the Tribunal may:
(a)confirm or amend the decision;
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision- maker with directions that the Tribunal considers appropriate.4
Section 135(1)(b) of the Act provides that the conditions for a kinship carer certificate are:
(i)the applicant is kin to the child to whom the approval relates; and
(ii)the applicant is a suitable person to be an approved kinship carer for the child; and
(iii)all members of the applicant’s household are suitable persons to associate on a daily basis with the child; and
(iv)the applicant and each adult member of the applicant’s household have a current positive prescribed notice or current positive exemption notice; and
(v)the applicant is able to meet the standards of care in the statement of standards; and
(vi)the applicant is able to help in appropriate ways towards achieving plans for the child’s protection.
A suitable person is identified in the Child Protection Regulation 2011 (Qld) as someone who does not pose a risk to the child’s safety, is able and willing to protect the child from harm, understands and is committed to the principles for administering the Child Protection Act and has completed any training reasonably required by the Chief Executive to ensure that the person is able to properly care for a child.
The Department submitted that the relevant issues in this Review Application were:
Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 24 (“QCAT Act”).
(a)HMD’s ability to care for a two year old child on a long-term basis under the current statutory planning framework, that requires that the Department undertake permanency planning for children in care. The Department argues that given HMD’s age there were legitimate and well-founded concerns about her long-term ability to meet AR’s ongoing needs;
(b)HMD’s ability to manage the complex dynamics of her extended family particularly with respect to HMD’s mother. It appears that issues with respect to AR’s paternal grandmother have been resolved; and
(c)HMD’s ability to work collaboratively with Departmental staff which requires that she accepts and complies with reasonable directions of the Chief Executive.
The Department submitted that it had taken into consideration the relevant provisions of the Human Rights Act 2019 (Qld)5 and that it is both reasonable and necessary to assess a person’s capacity to care for children on an ongoing or long-term basis with reference to their likely functional capacity. HMD acknowledges that she will be 90 years old by the time AR turns 18 years old.
Therefore, the Department contended that it is entitled to take a proposed carer’s age into account as a relevant consideration when assessing their suitability to become a kinship carer.
The Department submitted that the Child Protection Act 1999 (Qld) is beneficial legislation, the object of which is to protect children from harm. Therefore, it is reasonable to take into account any other attribute that relates to an applicant’s capacity to provide care to a child and in this case, it is an appropriate and necessary limitation on HMD’s Human Rights.
The Department submitted that, during the hearing, there was “persuasive and unchallenged evidence before the Tribunal in relation to AH’s personal difficulties and her repeated and ongoing failures to address the child protection concerns impacting on her parental capacity.”
The Department pointed out that AH has recently served two terms of imprisonment and at the time of the hearing had only just been released from prison.
The Department argued that HMD was effectively AH’s sole support for practical and emotional assistance.
Unfortunately, it appears that very shortly after the hearing, information was provided to the Tribunal that AH had left where she had been living with HMD, failed a drug test and did not report to her Probation Officer as required.
The Department provided copies of correspondence regarding these matters and submitted that the Tribunal may safely place reliance on the contents of these documents, particularly because one of the documents was from HMD.
The Department pointed out that pursuant to section 28 of the QCAT Act, the Tribunal is not bound by the rules of evidence and may inform itself as it considers appropriate.
The Department strongly maintained that HMD’s proposal to obtain a kinship carer certificate to care for AR while also performing a role as AH’s “sole support” is not compatible with the child’s best interests. The Department asserted that HMD is
See sections 4(b), 4(f), and 58(5).
unable to manage the level of risk that AH inevitably brings into HMD’s household. As a result, the Department argued that she is not a suitable person as defined in the Act.
The Department also outlined a number of matters that it submitted demonstrate that HMD is not able to work collaboratively with it. They submit that there are significant doubts as to whether HMD understands and is committed to, the principles for administering the Act.6
Specifically, the Department referred to the incident on 21 September 2018 where they maintained that the applicant had engaged in evasive behaviour while retaining the child in her care for a period of nine hours.
The Department expressed concern about the applicant’s lack of insight into the nature of her relationship with the Department regarding her failure to comply with a lawful direction. They point out that a carer cannot simply pick and choose what Directions they should comply with.
Accordingly, the Department argued that HMD fails to meet the benchmark of being able to help in appropriate ways towards achieving plans for the child’s protection.
The Department also confirmed that it is committed to promoting HMD’s relationship and connection with AR as her great grandmother.
Subject to the decision of the Tribunal the Department commits to immediately considering a contact arrangement involving HMD having frequent and regular contact with AR to lay a solid foundation to promote and support the continuity of their relationship.
In the event that the Tribunal does not accept the Department’s position then they invite the Tribunal:
“to consider making an order under section 24(1) of the QCAT Act to invite the Department to consider granting (HMD) a time-limited role as a respite carer for a period of 2-3 days per fortnight, accompanied by other conditions to protect (AR) from unauthorised and unmanaged contact with (AH)”.7
Discussion
Initially the Application by HMD could have been characterised as a straightforward application for the applicant to be approved as a Kinship Carer for the child AR.
Since the completion of the hearing on 19 February 2020, the Tribunal has received further submissions that strongly indicate that the applicant’s situation in relation to her granddaughter AH immediately deteriorated after the hearing.
The closing submissions from the Department, dated 3 March 2020, at para [49] indicate that very shortly after AH left the accommodation she was sharing with HMD and returned to using “ice”. She also failed to complete a drug test that the Department requested of her on Friday 21 February 2020. Apparently, she also failed to report to her Probation Officer as required, and upon finally meeting with him, she acknowledged she had relapsed and used “ice” since her release.
Child Protection Regulation, regulation 23(c).
Department’s closing submissions dated 3 March 2020 at para [65].
At para [55], the Department advised that AH continues to live a chaotic, unregulated lifestyle involving ongoing drug use and probable criminality. They claim that she continues to enlist the aid of HMD to manage the up-and-down cycle of personal dysfunction that characterises her life.
At para [56] the Department states that HMD’s proposal to obtain a kinship carer certificate to care for the child whilst also performing as her granddaughter’s “sole support” is not compatible with the child’s best interests, and she is unable to manage the level of risk that the granddaughter inevitably brings into her household.
HMD says in her closing submissions at page 9 para [9], that her contribution to her granddaughter’s accommodation has now ceased, and she believes that eventually her daughter will relocate away from the Gold Coast, as she does not now believe that her granddaughter will be able to care for the child.
HMD says at page 3 in reply to the Department’s closing submissions8 that she has given her granddaughter “The Benefit of Doubt” (sic) on occasions, but that she has been let down badly. She really hoped that her granddaughter could be reunited with the child, but that now is impossible. She says that her family and she are appalled with her granddaughter’s behaviour.
The Tribunal considered the possibility that HMD might serve as a “bridge” for a period of time until the child could be reunified with her mother. The potential may have been present that the child could have continuity of family upbringing, leading to a transition back to her mother.
HMD appears to have now conceded that reunification is unlikely and as a result the Tribunal has formed the view that different considerations now apply.
AR is presently in a foster situation, with other children. She is able to enjoy an appropriate family atmosphere, and environment where she can interact with other young children.
The Department proposed at para [64] that it will immediately give consideration to a contact arrangement involving HMD having frequent and regular contact with the child to lay a solid foundation to promote and support the continuity of their relationship.
Confusingly, whilst the Department has sought to commence negotiations about this contact, HMD has advised (para [64]) that she is not yet prepared to have overnight contact due to supporting her granddaughter and other commitments she has accommodating/entertaining friends in her home at the moment, and advised she would not be in a position to do this for several weeks.
The Department raised an alternate scenario in the last paragraph of their closing submissions as follows:
[65]If the tribunal is not with the Department in terms of this proposal for (HMD) to have substantial and significant contact with (AR) as her great
– grandmother in place of a statutory role as a kinship carer, then the Department would invite the tribunal to consider making an order under s24(1)(c) of the QCAT act to invite the department to consider granting (HMD) a time – limited role as a respite kinship carer for a period of two
Department’s closing submissions at para [48].
– three days per fortnight, accompanied by other conditions to protect (AR) from unauthorised and unmanaged contact with (AH).
Since it now appears to be unrealistic for preparation for reunification to be undertaken the Tribunal has reached the conclusion that a plan similar to that proposed by the Department would be appropriate. Such a plan should involve HMD having regular contact with the child including overnight contact including for several days at a time. That would enable the child to have an ongoing relationship with HMD, whilst not placing her in the situation of having to deal with both her granddaughter and the child at the same time.
Having considered all of the matters outlined in these Reasons and the changed prospects regarding reunification, the Tribunal accepts the proposal submitted by the Department. In the Tribunal’s view that option restores HMD to the status of a kinship carer, but in the role of a respite carer, which does not place continual pressure on HMD, but allows her to be available as required, and to maintain a close relationship with the child.
Therefore, the Tribunal orders that:
1.Pursuant to section 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of Department of Child Safety, Youth and Women made on 18 December 2018 to refuse HMD’s application as a kinship carer for the child AR is set aside and the matter is to be returned to the Department of Child Safety, Youth and Women to reconsider their decision.
The Tribunal directs that:
2.The Department of Child Safety, Youth and Women are to consider granting HMD a time-limited role as a respite carer for a period of two to three days per fortnight, with such other conditions as the Department of Child Safety, Youth and Women considers appropriate to protect the child AR from unauthorised and unmanaged contact with her mother AH.
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