JWG v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 170
•15 April 2016
| CITATION: | JWG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 170 |
| PARTIES: | JWG |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML 283-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 8 March 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Rogers |
| DELIVERED ON: | 15 April 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the decision of the Chief Executive, Public Safety Business Agency to cancel the positive notice of JWG be set aside. 2. That the Chief Executive, Public Safety Business Agency issue JWG with a positive notice and blue card 3. That publication of names or details leading to the identification of JWG or her children is prohibited. |
| CATCHWORDS: | BLUE CARD – where cancellation of positive notice – where long history of working with children – where applicant’s children in care – whether change in circumstances - whether ‘exceptional case’ Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | JWG repesented by Mr Wills of Aboriginal and Torres Strait Islander Legal Service (Qld) Pty Ltd |
| RESPONDENT: | Public Safety Business Agency by its officer Ms Heath, advocate. |
REASONS FOR DECISION
Background to the application.
In 2004 Ms JWG started working with youth as a prison liaison officer. She thoroughly enjoyed her work with young people, in particular doing all she could to ‘minimise their chances of going back into the public and reoffending.’[1] References from co-workers tell of JWG’s commitment to her work, her rapport with the youth and her friendly attitude with lots of laughter.
[1]Affidavit of JWG dated 17 October 2015 at [22].
When the Working with Children legislation was introduced she applied for and was granted a blue card. It was renewed every three years, most recently in June 2014.
Her home life was a very different situation. Ms JWG, a woman of aboriginal descent, was removed from the care of her grandmother and taken into foster care when she was nine years old. She does not know why this decision was made. Her period in care was marked by abuse and she now feels disconnected from her family and heritage.
In 1998, as a single mother with 3 young children, Ms JWG commenced a relationship with Mr F. It lasted until 2014 and they had seven children together. Ms JWG now has 10 children between the ages of 3 and 24 and 3 grandchildren.
Escalating domestic violence marked this relationship. Mr F spent periods in prison for the sexual abuse of a child (not his own child) and for breaches of Domestic Violence Orders. Ms JWG says he controlled her life physically, emotionally, financially and culturally.
Ms JWG was raised under the protection of Child Safety from the age of nine years. She stated it was all she had known so when she had difficulties with her own children she turned to them for assistance. She had an ongoing involvement with the Department of Communities, Child Safety and Disability Services (‘Child Safety’) as a result of various notifications and incidents.
Finally in 2012, her six children from her relationship with Mr F were taken into care. Ms JWG says she was told it was because she did not engage in counselling as requested, but it is clear from the material that this was merely one of a range of concerns held by Child Safety. The material from Child Safety indicates the children were removed because it was determined, notwithstanding long term intervention, Ms JWG was not able to protect them from the impact of ongoing domestic violence and the risk of her partner sexually abusing his own children. Her youngest child was taken from her in the hospital shortly after she gave birth.
Ms JWG says this was a difficult time. She did drink alcohol to excess, though not when she had the children, and started to gamble. She said this was because she was still living with Mr F and she adopted his behaviours. Careful cross-examination by the Chief Executive, Public Safety Business Agency (‘Chief Executive’) referring to the material from Child Safety drew attention to the fact Ms JWG downplayed her behaviours in her evidence.
Ms JWG said she tried to cooperate with Child Safety. She said the children did not like being in care but she spent what time she could with them in challenging circumstances. The older ones were difficult to control. When they absconded and came to her house she would notify Child Safety and arrange for them to be returned.
In November 2014, Ms JWG’s daughter rang and asked her to come and take her for the night. This was not unusual and she normally had permission to do so. When she arrived, Ms JWG was told she could not take her daughter with her from the residence. She formed the view that it would be safer to take her child without permission than to leave her to the dangers that came with running away.
About five minutes after she arrived home the child was picked up by the police and returned to her placement.
As a result of this incident, Ms JWG was charged with one count of removing a child from a child safety placement. When the matter came before the court on 22 May 2015 no evidence was offered and the charge was dismissed.
Details of the charge were provided to the Chief Executive, triggering an investigation into her circumstances to determine if she could continue to hold a blue card. Information was obtained from Child Safety. Her positive notice was cancelled on 11 May 2015 and as a consequence she could no longer continue in her employment.
This decision was reconsidered and affirmed by the Chief Executive on 22 September 2015 and Ms JWG now seeks a review of this decision before this Tribunal.
What is the legislative framework?
Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’). The principles for administering the Act, set out in s 6, are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. Section 360 of the Act restates that principle for the purposes of reviewing a child-related employment decision.
Where an applicant has been charged or convicted of an offence, other than a disqualifying or serious offence as defined in the Act, a positive notice must issue unless it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice.[2]
[2]Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) ss 221(1)(b)(iii)-(c), 221(2).
The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree.[3] This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act.
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Section 226 of the Act sets out the factors that must be considered when making the determination, however it does not confine consideration to those matters.[4]
[4]Ibid at [42].
Once a decision is made to issue a positive notice and blue card, the holder is authorised to work with children in any work environment.
Any hardship or prejudice suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.[5]
[5]Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171 at 23.
What is the evidence relied on to establish an ‘exceptional case’ exists?
There are two broad areas of concern. The first relates to Ms JWG’s criminal history and the second to her Child Safety history culminating in a decision by a Court to remove Ms JWG’s children from her care.
I have considered the seven charges and convictions in Ms JWG’s criminal history. There are no serious or disqualifying offences. The four charges relating to events between 1991 and 1995 are dated, do not specifically relate to children and resulted in either minimal penalties or, on one occasion, no evidence was offered and the charge did not result in a conviction. I have given no weight to these charges.
In 2008 there was a charge of committing a public nuisance and no conviction was recorded. In 2012 there was a charge for stealing where no evidence was offered. I have given little weight to these charges.
The final charge in November 2014, for removing a child from a child safety placement, was struck out.
The Chief Executive argues there was no evidence to support Ms JWG’s assertion there was an informal agreement allowing her to remove the children without confirming with the carer that they approved.[6] Ms JWG was not relying on that informal agreement. On this night, Ms JWG was told she did not have permission to remove the child, she did and the police were called. I accept Ms JWG’s explanation of the charge. She says she decided that even though she did not have permission for her daughter to go with her, it was most likely, based on past history, that if she did not take her she would just leave anyway and then would get into trouble for catching a train without a ticket. It was therefore safer, in all the circumstances, for her to take her daughter with her at that time. I note Child Safety did not take further action and the police did not pursue the charge.
[6]Respondent’s submission dated 22 March 2016 at para 28 (iii).
In the statement of reasons the delegate states ‘her offending and alleged offending as a whole suggest a general disrespect for authority and a tendency to conduct herself without regard for the law’.[7] Having considered the evidence it is difficult to discern the basis for this statement. In 2014 her behaviour, rather than demonstrating disrespect, was based on an assessment of risk. Her earlier offences were minimal or did not proceed to a conviction. The legislation requires the decision maker to be satisfied of an ‘exceptional case’ before a negative notice can issue. It is important to maintain perspective about behaviour regularly encountered in society. Sweeping generalisations, without consideration of the facts or influencing factors, do not promote good decision making.
[7]Statement of Reasons of chief Executive dated 22 September 2015 at [6.4].
I have therefore given little weight to Ms JWG’s criminal history and have decided her criminal history alone is not be sufficient to establish an ‘exceptional case’ for the refusal to grant a positive notice.
However, when deciding if a positive notice should be granted I am required to consider the totality of the evidence.
In August 2012, Ms JWG’s children who were under the age of 18 years were placed under a Child Protection Order. The children were taken into care because there were serious concerns about the capacity of Ms JWG to protect her children and to meet their needs.
A further court order was made in August 2014. This order expires in August 2016 and the children are currently in the process of being returned to the care of their mother. The four oldest children have been returned to her fulltime care and the three youngest are with her about 40% of the time. This transition must be approached cautiously and closely monitored for its impact on the children.
It is the submission of the Chief Executive that Ms JWG has not yet demonstrated that she can care for all of her children, that she has met the requirements of Child Safety, that she will not return to her previous violent relationship, or that she has developed strategies to overcome the significant risks demonstrated in this case.
What are the identified risk and protective factors?
In order to establish if an exceptional case exists such that it would not be in the best interests of children for a positive notice to issue it is useful to identify the risk and protective factors arising from the circumstances of the case.[8]
[8]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The protective factors include:
a) a limited criminal history which is for the most part not recent and does not relate to significant charges;
b) Ms JWG age and maturity;
c) her long period of stable employment working with children and young people;
d) positive references from work colleagues;
e) counselling by a psychologist and completion of child safety focussed programs; and
f) established support networks such as Kummara, the children’s school community, and support workers.
The risk factors include:
a) Ms JWG’s inability to protect her children from danger resulting in their removal from her care;
b) lack of insight into the circumstances harmful to children including conflict and domestic violence;
c) the possibility of a renewal of her previous long term relationship;
d) the risk the recent psychological intervention has terminated too early;
e) a demonstrated willingness to ignore a lawful instruction when she judges it necessary to do so;
f) failure to take personal responsibility demonstrated by her willingness to minimise her behaviours or to explain her actions by the circumstances of her violent relationship; and
g) insufficient time to demonstrate the effectiveness of her new strategies.
The focus of this enquiry must be the obligation to ensure children are cared for in a way that protect them from harm and promotes their well being. Ms JWG has worked with some of the most vulnerable children and young people in our community and her work colleagues testify she has performed this task well. Ms JWG has met her obligation in a regulated work environment for eleven years. There is no reason to say her behaviour in this environment would not continue.
However, consideration must be given to all areas of working with children and cannot be restricted to one specific environment. It has been identified that Ms JWG was not able to protect and provide for her children in her own home in circumstances of domestic violence.
While this may have been sufficient to establish an exceptional circumstance previously, I am satisfied that it does not at this time for the following reasons.
Ms JWG states she will not reconcile with her previous partner and she points to events where she arranged for him to be breached for failing to comply with a domestic violence order. She did that at great risk to herself because on a number of occasions he spent time in prison as a result of her actions. The Chief Executive says there has been no opportunity to reconcile because her partner has been in prison in Townsville however I am satisfied on the evidence that this relationship is now over.
Mr Topping, psychologist, has given very measured evidence about the progress Ms JWG has made during the 18 months she has received counselling. He says she now understands the impact of violence on children. She was prepared to acknowledge that with her new understanding ‘I would have removed the kids too.’ He has watched her cope with the reunification and says the Child Safety officers are impressed with her progress. She is developing insight into her own behaviours and the needs of her children. He says she does need to do further work on coping with stress and it is concerning that Ms JWG has indicate she cannot afford further treatment, however I am satisfied Ms JWG now has sufficient insight to return to Mr Topping if she starts to regress.
Ms JWG has put in place safety plans. She is now prepared to ring police in a dangerous situation. She can identify when people are being aggressive towards her and can choose to not have a relationship with them. She is trying to enlarge her circle of support with church contacts.
Child Safety are in the process of returning the children into her care and this indicates they have formed the professional view that she is now able to protect and provide for her children.
Ms JWG took great pride in her job. It was important to her especially at a time when things were difficult for her in her personal sphere. She would not want to jeopardise her employment prospects by further offending or child protection issues. She now has a network of professionals she can call on for support and in these circumstances I am satisfied she will seek assistance when it is necessary.
I accept the perceived risk to children was higher in the past than it is now but circumstances do change with time. Balancing the evidence I am satisfied that Ms JWG presents no greater risk when working with children than any other worker who holds a blue card. I am satisfied that this is not an ‘exceptional case’ because the evidence does not point to the conclusion that it is in the best interests of children for Ms JWG’s positive notice to be cancelled and a negative notice to issue.
I order that Ms JWG be issued with a positive notice and blue card
Non-Publication Order
The parties have asked for a non-publication order. Ms JWG’s children will be living with her and I am satisfied it is necessary in the interests of the children for an order to protect their identity be made.
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