KD v Department of Child Safety
[2011] QChC 8
•28 July 2011
CITATION: KD v Department of Child Safety and Others [2011] QChC 8 PARTIES: KD
Appellantand
DEPARTMENT OF CHILD SAFETY
First Respondent
andCASEY FLOWER
Second Respondent
andBARBARA FOX
Separate Representative
and Third RespondentFILE NO: No. 673 of 2009 PROCEEDING: Appeal DELIVERED ON: 28 July 2011 DELIVERED AT: Southport HEARING DATES: 28 July 2011 JUDGE: Judge C.F. Wall Q.C. ORDER: Appeal allowed, decision set aside and application remitted to the Childrens Court CATCHWORDS: Child Protection Order made by consent – doubt as to efficacy of the Appellant’s consent in view of her mild intellectual disability and absence of legal representation – Relevant considerations LEGISLATION: Child Protection Act 1999, sections 106, 109 COUNSEL: Appellant – Ms C Buchan, solicitor
First and Second Respondents – Mr I Anderson
Third Respondent appeared for herselfSOLICITORS: Hannay Lawyers for the Appellant
Crown Law for the First and Second Respondents
Third Respondent appeared for herself
THE CHILDRENS COURT OF QUEENSLAND
JUDGE C.F. WALL QC
No 673 of 2009
| KD | Appellant |
| and | |
| DEPARTMENT OF CHILD SAFETY | First Respondent |
| and | |
| CASEY FLOWER | Second Respondent |
| and | |
| BARBARA FOX | Separate Representative Third Respondent |
SOUTHPORT
..DATE 28/07/2011
JUDGMENT
RESTRICTED ACCESS TRANSCRIPT (EDITED)
PUBLISHED PURSUANT TO APPROVAL GIVEN UNDER S192(a) CHILD PROTECTION ACT 1999.
HIS HONOUR: This is an appeal against a decision of a Childrens Court Magistrate, given in the Childrens Court at Southport on the 12th of November 2009 which, by consent, made an order granting long term guardianship of the child, TD, to the Chief Executive, such order to continue until the child turns 18 years of age.
By an application filed in the Childrens Court on the 12th of March 2009, the respondent Department sought a child protection order granting long term guardianship of the child to the Chief Executive. In that application the following background information was provided. "In February 2007 an assessment determined that KD, (the appellant) was functioning at the mildly disabled range of general intellectual functioning; borderline average verbal intellectual abilities and extremely low average range of performance intellectual abilities".
The February 2007 assessment was that of two psychologists, Alana Dobie and Cliff Leong, who had provided a report dated the 26th of February 2007, which is Exhibit 1 before me. The following appear to be the more relevant passages from that report:
"Education
KD attended a regular primary school and then in year seven attended Coolangatta Special School, which she reports 'mixed grades'.
Presentation and Test Behaviour
She was oriented to time, place and person. KD needed constant prompting through out the clinical interview and testing to elaborate on answers, which consistently trailed off with 'I don't know… something… I don't know'. With prompting KD did tend to provide more comprehensive answers. Despite this, KD's memory for past dates and historical detail was generally vague.
Tests Administered
* Wechsler Adult Intelligence Scale - 3rd Edition (WAIS III)
General Intellectual Functioning
The current assessment indicates that KD is functioning at the mildly disabled range of intelligence. This means that KD is performing better than 1% of adults her age on the WAIS III. In KD's case it may be helpful to view general intellectual functioning and global mental abilities as a unitary concept as she exhibited no specific strengths or weaknesses on any of the subtests.
Specific Verbal Intellectual Abilities
Comparable to adults her age, KD exhibited Borderline average range scores on verbal abilities (3rd percentile). This means that on tasks requiring KD to exhibit verbal comprehensive abilities and working memory KD performed better than three percent of adults her age.
Specific Performance Intellectual Abilities
Comparable to adults her age, KD exhibited Extremely Low average range scores on Performance abilities (0.4%). This means that on tasks requiring KD to exhibit perceptual organization and processing speed KD performed better than 0.4% of individuals her age.
Verbal: Verbal Comprehension and Working Memory
Whilst not statistically significant, relative to the rest of the test, KD's performance was stronger on the verbal intellectual abilities subtests, though still remaining in the Borderline range.
Performance: Perceptual Organisation and Processing Speed
KD's performances on the subtests requiring perceptual organization and processing speed were in the Extremely Low range."
The appellant appeals against the consent order on the grounds that her consent was obtained in circumstances of duress and in circumstances that are not fair to her, that she was not legally represented, that she felt pressured and without any choice but to consent to the application. Up until the 12th of November she had been always legally represented. The 12th of November appears to be the first occasion on which she appeared in the Childrens Court unrepresented. She had always intended to contest the Department's application.
Before the 12th of November 2009, the matter was last mentioned on the 8th of October 2009, at which time the Childrens Court Magistrate directed the appellant's solicitor to "urgently progress the mother's Legal Aid application, for the funding for hearing, so that all parties, particularly the respondent mother, had an outcome as to whether she would be legally represented at the hearing or not" (paragraph 7 of the affidavit of Emma Hurse, filed on the 8th of March 2010). The appellant then had acting for her Julie Falcke, of the firm Sempre Vero lawyers.
The Department's application for the child protection order was listed for hearing in the Childrens Court on the 3rd and 4th of December 2009. It was also listed for a review mention on the 19th of November 2009. The appellant was required to file her material by the 13th of November 2009.
By a letter dated the 15th of October 2009, Ms Falcke wrote to the appellant in the following terms:
"RE: KD: DEPARTMENT OF CHILD SAFETY MATTER
We applied for an extension of legal aid to fund the legal costs of the hearing, but unfortunately legal aid has been refused. The reason given is that on the information provided, the prospects of your case succeeding are insufficient to justify the granting of legal aid having regard to other demands for legal aid on the office.
To appeal this decision, we would need to write to their office explaining why the decision is wrong by 12 November 2009.
There is a mention of the matter listed in the Court on 9 November 2009, and you should contact Julie Falcke by Friday 6 November 2009 to discuss the position with her upon her return to the office."
The reference in the last paragraph to the 9th of November is a mistake, it should be the 19th of November 2009.
What happened then is referred to in the affidavit of Ms Hurse in the following terms:
"6. On 5 November 2009 I had a telephone conversation with Ms Falcke. Ms Falcke had been acting as KD legal representative throughout the course of the child protection matter in relation to TD. I telephoned Ms Falcke to ascertain whether she was still funded by Legal Aid to act for KD in this proceeding as I was aware KD was required to file her material on 13 November 2009. Ms Falcke advised that she had not been granted funding from Legal Aid to act for KD in the hearing of the matter and in fact did not have funding for the last few mentions that she had attended for KD. Ms Falcke indicated to me that she had informed her client of this and informed her of what would be required of her if she chose to continue to contest the department's application on TD."
Also on the 5th of November 2009 Ms Hurse wrote to the Childrens Court Magistrate in the following terms:
"Re: Child Protection Matter - File no: SOUTH CCM 245/09
TD (DOB: 19/11/2006)
I am writing to inform the court that this matter is currently set for a final review mention on 19 November, 2009 at 9.00am and hearing on 3 and 4 December 2009.
The respondent Mother's legal representative Julie Falcke has informed the department that she has withdrawn as the mother's legal representative as the mother is unable to be funded by legal aid for the hearing of this matter. It may be that early settlement of this matter is able to be obtained.
The department respectfully request to have this matter listed for early mention on the Thursday 12 November, 2009 at 9.00am.
The Department will inform the relevant parties of this early mention date."
Ms Hurse also deposed as follows in paragraph 9 of her affidavit:
"9. On 12 November 2009 KD attended court with her support person Ms CH. Prior to entering the court room Child Safety Officer Casey Flower and I had a brief conversation with the mother about what the process of a child protection hearing entailed. I indicated to KD that her filing date was the 13 November, 2009 and that by 4pm on this date she was required to file any material that she wished to rely upon in relation to the department's application on TD. I indicated to KD that the department had witnesses that they would call to provide verbal evidence in the matter and that KD was able to ask questions of these witnesses during the hearing. I also recall speaking to KD briefly about that if she was still contesting the application that I would speak to the Magistrate and request that the hearing be conducted on the papers, meaning that the Magistrate would read the material already filed before the court and then make a decision and I explained to KD that this way no witnesses would be called and she would not have to ask any questions."
The mention on the 12th of November was the last day for the appellant to appeal against the refusal of her legal aid.
The matter came before the Childrens Court Magistrate on the 12th of November and the transcript is relatively brief and I'll set it out in full:
"BENCH: Madam, please stand. I hear [sic] from Ms Hurse and Ms Fox first so I know what their position is. I accept you stand without your legal representatives and I accept that in relation to the funding issue.
RESPONDENT: Yeah.
BENCH: What do you want to tell me?
RESPONDENT: Oh, well, the funding basically, I guess I'll have to go through with the long-term order, I guess.
BENCH: Okay, so do you still want to proceed with the hearing, or do you want to consent to an order? Do you know what you want to do? The reason - I'm trying - I'm trying - attempting to be fair with you. That's why Ms Hurse has brought this on now. Certainly in relation to both your interests, that of the separate representative, we need to know exactly what you're doing, okay?
If, because the funding has been withdrawn, if you decide now that you don't want to contest the application any further, please tell me. If you think that you can still conduct a hearing, then Ms Hurse and Ms Fox have asked me to make a direction in relation to the matter that the hearing only be conducted on the papers which is the affidavits material that's been filed.
MS FOX: No, I don't have anything else to add, thank you.
BENCH: In relation to the current application, I accept it's been brought forward at the request of Ms Hurse. I accept the Legal Aid funding in respect of the mother has been withdrawn and the former solicitors are unable to continue to represent the interests of the mother.
I accept the submissions of Ms Hurse and Ms Fox in relation to the application and I accept the consent of the mother today in light of the withdrawal of Legal Aid. Accordingly, I vacate the hearing dates, the 3rd and 4th of December 2009 in the best interests of the child, TD. In the light of the material that has been filed, I am satisfied it is appropriate to grant the application. The application is granted. I order, pursuant to a Child Protection Order granting long-term guardianship of the child to the Chief Executive. This order will continue until the child turns 18 years of age.
Madam, I invite you to continue to cooperate as best you can with the department, their representatives, both in your best interests and that of TD's.
Thank you for your appearance. Good morning, to you. You're free to go. Thank you."
The Magistrate refers in that transcript to the fact that Ms Hurse and Ms Fox had asked him to make "a direction in relation to the matter that the hearing only be conducted on the papers", that is, the affidavits that had been filed. Now, Ms Fox cannot recall making such an application. There is no transcript before me in relation to such an application. It would be of concern if Ms Hurse had, in fact, privately contacted the Magistrate to request that the hearing be conducted on the papers or thought it appropriate to unilaterally contact the Magistrate to request such a hearing or that such an application had been made in the absence of the appellant. The impression given by the transcript is that the appellant may have been disadvantaged by some discussion, or previous discussion, even one at which she was present, about a hearing on the papers.
The appellant on the 12th of November seemed to be faced with the prospect of a hearing of the application on the 3rd and 4th of December 2009 "on the papers" and that would have been a new development in the matter so far as she was concerned.
The appellant deposed as follows in her affidavit filed on the 20th of April 2010:
"4. I was previously represented by Julie Falcke of Sempre Vero Lawyers and was advised by letter dated 15 October 2009 that Legal Aid funding in this matter was not approved and that an appeal of the decision of legal aid could be requested by 12 November 2009.
5. I recall at the time of receiving the letter that my Solicitor Julie, had been away for a month or so and when I asked her about the appeal she stated that it was too much work to appeal and that the hearing would be too much work and not worth doing all the paperwork. I would have liked to explore getting another lawyer, but I didn't have time to. I recall that there was not much time between getting the letter and the court mention date. The letter also said that the next mention date was the 9th November 2009, but it was actually scheduled for the 19th November 2009.
6. The department became aware of me losing legal representation and before I could seek the Legal Aid decision be reviewed the review mention date was brought on earlier. The matter was listed for final review mention on 19 November 2009, however the matter was brought forward to the 12 November 2009 at the request of the Department of Child Safety…
…8. This was not necessary and denied me the opportunity to appeal the decision of Legal Aid or seek other legal representation.
9. I attended the Review mention on 12 November 2009 with my friend and support person CH. We were spoken to by the Child Safety Officer Casey Flower and told me [sic] that they were going to request a Long Term Order today. I felt that there were no options and that I could not do anything about what was happening.
10. I felt intimidated by this conversation and that I had no option but to consent to the order. I did not have time to consider my options or explore other options for Legal Representation and no suggestions were put to me about this. I would have liked to sought legal advice, speak to my support person or at least have some time to think about what was said, but that was not an option and I felt that I could not ask this because of the way that it was put to me and the manner in which the officers acted towards me.
11. At the time I was not fully aware of the legal consequences of what I had consented to or that I could have sought further legal advice or representation. I have a mild intellectual disability which affects my verbal, comprehension and complex reasoning. The department knows this and yet did not provide any consideration for this in the legal process."
The appellant was not required for cross-examination on her affidavit and in those circumstances I think I'm entitled to proceed on the basis that what she says in relation to how she felt on the 12th of November is not challenged by the respondents.
What she says is supported by her support person CH who, in her affidavit, says as follows:
"2. I attended the Southport Court house with KD on the 12 November 2009 and was present when the Child Safety Officer Casey Flower and Emma Hurse spoke with KD about the application before the court.
3. On the 11 November 2009 I received a phone call from Casey Flower asking if I was aware of what was happening the following day at court for KD. She said that I should attend to support KD the following day. I recall that it was a week before TD's third birthday. She asked if KD had filled her [sic] in about the court matter tomorrow. I was still under the impression that KD had legal representation. She told me that Julie Falcke (KDs' Solicitor) was not longer representing her and she would have to represent herself.
4. KD and I attended the court at 9am on the 12 November 2009 and were met by Casey Flower, she began talking about the matter in the Foyer, we were not asked to go into any rooms or given any privacy to discuss the matter. This was all rushed and only minutes before KD was to be called in the court room.
5. I recall that Casey Flower stated that they were going for the Long Term Order and that she knew that KD did not have any legal representation. I do not recall any conversation about the legal process or what would happen at the hearing, there were no options discussed. She did say to KD that nothing is going to change for her and that you will always be a part of TD's life.
6. KD was never asked if she wanted time to consider her options or seek further legal advice. I do not recall any discussion about KD being able to run a hearing on the documents only or being able to ask questions of witnesses.
7. The conversation was very brief and then Casey Flower returned to the interview room that Departmental staff use as their office and continued talking socially amongst themselves.
8. A few minutes later KD was called into the courtroom and I waited outside for the Child Safety Officer (Casey Flower) to check with the Magistrate that I was allowed to attend as it was closed court. She returned and said that I could attend…
…11. KD has always expressed a desire to be reunified with TD, she has pushed the matter to hearing so that she could challenge the Department's version of events and attempt to be reunified with her child. I am aware that her Legal Representative stopped representing her just prior to the review mention date, she did not have time to seek other legal representation as the department brought the matter on earlier. KD now has legal representation that is not dependant on funding of Legal Aid."
The Magistrate had before him at least the application for the child protection order which included the background information which I've previously referred to. He would therefore have been aware that the appellant was a person with a mild intellectual disability which affected her verbal comprehension and complex reasoning. The respondents concede such a disability on the part of the appellant.
The Magistrate, judging from the transcript seemed to be more concerned with the absence of funding for legal representation than to the efficacy of any consent forthcoming from the appellant.
Section 106(1) of the Child Protection Act provides as follows, "In a proceeding for a child, the Childrens Court must, as far as practicable, ensure the child's parents understand the nature, purpose and legal implications of the proceeding and any order or ruling made by the Court". Subsection (2) provides that the Childrens Court must not hear a proceeding involving a parent who has a disability without a person to effectively assist the parent suffering from the disability.
In the present case the Childrens Court Magistrate does not appear to have directed his mind to the provisions of section 106. He seemed to be, with respect, more concerned with the provisions of section 109(1) which is in the following terms:
"If in a proceeding on an application for an order for a child a parent of the child appears in the Childrens Court but is not represented by a lawyer the Court may continue with the proceeding only if it is satisfied the parent has had reasonable opportunity to obtain legal representation".
The Magistrate seems to have directed most of his attention to the absence of legal representation. When he asked the appellant: "Do you want to consent to an order?" he should, in my view, have taken some steps to ensure that the appellant understood precisely what was going on and what had been said to her in the period leading up to the indication by her that she was consenting. A new aspect of the hearing had been raised about which she had not had an opportunity to seek any advice about, namely, the fact that other parties to the application had requested the Magistrate hear the matter on the papers in circumstances where she would not be able to ask any questions of any of the witnesses. I think it was incumbent upon the Magistrate to further explain to the appellant the position in relation to that aspect.
The impression given by all of the material before me is that the appellant may have felt she had no option but to consent to the course pursued by the Department, supported as it was by Ms Fox. I accept though that at all times the Department and Ms Fox considered they were acting in the best interests of the child but the impression given by the appellant is that, absent legal aid, it was all over and she didn't have any option but to consent to the Department's application. This impression was, I think, reinforced by the relatively perfunctory way in which the matter was disposed of in court. No consideration was given to the appellant's intellectual disability even accepting it to be mild. Objectively the appellant was likely to have felt overborne by the other side and the absence of any immediate alternatives open to her. She was in a disadvantaged position and was, I consider, given the impression that she had no choice but to acquiesce to the case against her. In effect, once unrepresented, the Department pounced; an opportunity was provided to quickly dispose of an application.
In all of the circumstances I have some reservations about the efficacy of the consent obtained and given by the applicant and the circumstances by which she came to give her consent. I accept the submissions of Ms Buchan for the appellant that there are available to a person in the position of the appellant alternatives to Legal Aid and especially in the case of a person suffering from a disability, albeit a mild one, such as the appellant. Those alternatives should have been explained to her. There is no indication in the material that any previous solicitors had done so. The Magistrate did not. I agree with Ms Buchan that the Magistrate should have, but apparently didn't, appreciate that the appellant may have been at an intellectual disadvantage in the circumstances.
The submission by Ms Buchan to the effect that notwithstanding the merits of the matter a person with a disability does have alternative Legal Aid options open to the person is a matter which perhaps should also have been explored.
In the circumstances I think there is a sufficient doubt surrounding the consent given by the appellant to justify setting aside the order and allowing the appeal.
Having said this, I haven't found it necessary to embark upon a consideration of the merits of the Department's application. On the basis of the material before the Magistrate I have no reason to doubt what the respondents say as to the appellant's unlikely prospects of success in resisting the application made by the Department. I don't think I should say any more about the merits, but in arriving at the decision I have today I do not mean to or intend to criticise in any way, shape, or form the respondents in the view they have taken up until now as to the merits of the Department's application.
Now, what order should I make, Mr Anderson, in the circumstances? Should I just set aside the order made by the Childrens Court Magistrate on the 12th of November and remit the matter to the Childrens Court?
MR ANDERSON: Yes, and my client would also ask if your Honour could make an interim order in relation to the custody of TD to the care of the Chief Executive‑‑‑‑‑
HIS HONOUR: Yes.
MR ANDERSON: ‑‑‑‑‑pending the matter being re-listed before the Court.
HIS HONOUR: Yes. So pending a final resolution of the matter or just be - until the matter goes back before the Childrens Court?
MR ANDERSON: Yes, it's just back to the Childrens Court and then the Childrens Court can deal with the ongoing custody at that time.
HIS HONOUR: All right. So if I express it until further order by a Childrens Court Magistrate I make an interim order granting - how do I‑‑‑‑‑
MR ANDERSON: The custody of TD - I'm instructed, your Honour, it's the temporary custody‑‑‑‑‑
HIS HONOUR: Granting‑‑‑‑‑
MR ANDERSON: ‑‑‑‑‑of the child, TD‑‑‑‑‑
HIS HONOUR: An interim order granting - if I make an order, say, until further order by a Childrens Court Magistrate I make an order granting‑‑‑‑‑
MR ANDERSON: Temporary custody.
HIS HONOUR: ‑‑‑‑‑of the child, TD.
MR ANDERSON: TD to the Chief Executive.
HIS HONOUR: Yes. All right. Ms Fox, how often does the Children's Court sit to hear these type of applications?
MS FOX: It sits every Thursday, your Honour.
HIS HONOUR: So if I list the matter for mention next Thursday in‑‑‑‑‑
MS FOX: What's the date next Thursday, your Honour? I think there's a - might be a Magistrates' Court conference on, so I don't think it's sitting again till the 11th. If next Thursday's the 4th‑‑‑‑‑
HIS HONOUR: Next Thursday is the 4th.
MS FOX: Yes, so the 11th is the next sitting of the Children's Court.
HIS HONOUR: All right. Well, I'll list it for mention on the 11th.
MS FOX: Thank you.
MS BUCHAN: Thank you, your Honour.
MR ANDERSON: Thank you, your Honour.
MS FOX: It's in the 9 a.m. list, your Honour.
HIS HONOUR: And list‑‑‑‑‑
MS FOX: Thank you.
HIS HONOUR: All right. 11th of August. The formal orders I make are these: (1) I allow the appeal; (2) I set aside the decision of the Childrens Court at Southport on the 12th of November 2009 granting long-term guardianship of the child to the Chief Executive; (3) I remit the application for a child protection order to the Childrens Court at Southport and list the matter for mention in that Court at 9 a.m. on the 11th of August 2011; (4) Until further order by a Childrens Court Magistrate I make an order granting temporary custody of the child, TD, to the Chief Executive.
Any application for costs?
MS BUCHAN: No, your Honour.
MS FOX: No, your Honour.
MR ANDERSON: No, your Honour. No, your Honour.
MS BUCHAN: We'll not be seeking any costs order, your Honour.
HIS HONOUR: All right. I make no order for costs. Thank you all for your assistance. It may, as I said, at the end of the day be a pyrrhic victory, but I think she's entitled to have her day.
Now, there's the various material there. Now, does that cover everything, everyone?
MS FOX: Yes, thank you, your Honour.
MS BUCHAN: Yes, your Honour.
MR ANDERSON: Thank you, your Honour.
HIS HONOUR: Yes. All right. Thank you. Now, 9.30 tomorrow.
-----
0
0
0