KE and SW v Department of Communities (Child Safety Services)
[2011] QChC 2
•31 May 2011
CHILDRENS COURT OF QUEENSLAND
CITATION:
KE & SW v Department of Communities (Child Safety Services) [2011] QChC 2
PARTIES:
KE and SW
(Appellants)V
DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)
(Respondent)
MS KENDALL HAWDON (Forest Glen Lawyers)
(Separate Representative)
FILE NO/S:
Appeal No 83 of 2010
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Childrens Court Toowoomba
DELIVERED ON:
31 May 2011
DELIVERED AT:
Brisbane
HEARING DATE:
3 March 2011
JUDGE:
Richards DCJ
ORDER:
Appeal allowed. The order of the Childrens Court is set aside. The Chief Executive is granted short term guardianship of JL for a period of 2 years.
CATCHWORDS:
Child Protection – where long term guardianship order made – where there is a prospect that a parent may be able to care for child in the foreseeable future.
COUNSEL:
The appellants appeared on their own behalf
Ms L Forrester for the Department of Communities
Mr R Slade-Jones for the Separate RepresentativeSOLICITORS:
Forest Glen Lawyers for the Separate Representative
On 17 September 2010 in the Toowoomba Childrens Court an order was made pursuant to s61(f)(iii) of the Child Protection Act 1999 granting long term guardianship of JL (born on 7 November 2008) to the Chief Executive Officer of the Department.
Legal Representation
Despite repeated efforts by different magistrates to obtain legal representation for KE and SW, the parents of the child, they were unable to obtain legal aid and were forced therefore to appear at the hearing of this matter as unrepresented litigants. The Department and the Separate Representative were both represented by counsel.
At the time of the hearing, the child was subject to an interim order granting temporary custody to the Chief Executive, Department of Communities (Child Safety) and had been living with an approved carer since soon after her birth in November 2008.
The mother of the child, KE was born on 9 September 1989. She is an epileptic and was herself raised by the Department in various foster homes. During her childhood she was sexually abused both in foster care and by relatives. She suffers from post traumatic stress disorder and has attempted suicide in the past. She was assessed, at the request of the Department, by Ms Anderson [a neuro-psychologist] who reported that her intellectual capacity was in the bottom two percent of the population and her overall individual functioning was in the second to fifth percentile with a limited fund of general knowledge and substantial difficulties with problem solving.
The child’s father, SW, was born on 18 November 1988. He suffers from global development delay. The Department was also involved with him as a child and he was assessed by Ms Anderson as well as having an extremely low level of general intelligence which was unlikely to change over time.
It is clear, given the above assessments, that both parents were significantly disadvantaged in the court system, and the transcript of proceedings demonstrates that although the magistrate made an effort to explain to them the procedure and it’s consequences, they were incapable of preparing any real defence in the hearing and unable to question the experts whom were called to give evidence at the hearing. As a consequence, although the parents were trying to contest the application, there was very little offered by way of resistance to this application.
In my view it is a sad indictment on our justice system that representation is not available to people with an intellectual disability of the type that KE and SW appear to have. This is particularly so in proceedings of such serious moment as this where the Department is seeking long term guardianship of an only child.
The Family
KE was 19 years of age and SW was 20 years old when JL was born. JL was their first child.
Whilst she does have intellectual and emotional challenges, KE nonetheless achieved a Year 12 education. SW also completed Year 12 despite his learning problems.
JL was assessed by Dr Don Adsett, a paediatrician, on 29 September 2009 and he found her to be developmentally delayed. She had an inability to sit and had only recently acquired an ability to roll over. She was reluctant to weight bear. She had very stereotypical vocalisation and repetitive stereotypical mannerisms. At that stage there was no specific explanation for her developmental delay and he offered to review her in four months.
Dr Adsett saw her again on 16 August 2010. He said JL had made good developmental gains since his last assessment. Her fine motor skills and her speech development were at a 14 to 15 month level [she was 21 months of age]. She had delayed cognitive skills but they had improved. She was bright and interactive but obviously delayed in her development.
The Law
Section 59 of the Child Protection Act 1999 defines the circumstances in which a child protection order can be made:
“Section 59 – Making of child protection order
(1) The Children’s Court may make a child protection order only if it is satisfied –
(a) the child is a child in need of protection and the order is appropriate and desirable for the child’s protection; and
(b) there is a case plan for the child –(i) that has been developed and revised under Part 3A; and
(ii) that is appropriate for meeting the child’s assessed protection and care needs; and
(c) if the making of the order has been contested, a conference between the parties has been held or reasonable attempts to hold a conference have been made ; and
(d) the child’s wishes or views, if able to be ascertained, have been made known to the court; and
(e) the protection sought to be achieved by the order is unlikely to be achieved by an order under this part
on less intrusive terms.
…
(6) In addition, before making a child protection order granting long-term guardianship of a child, the court must be
satisfied -
(a) there is no parent able and willing to protect the child within the foreseeable future; or
(b) the child’s need for emotional security would be best met in the long term by making the order
…(8)Before the court extends or makes a further child protection order granting custody or short-term guardianship of the child, the court must have regard to the child’s need for emotional security and stability.”
A child in need of protection is defined as follows:
“Section 10 - Who is a child in need of protection
A child in need of protection is a child who—
(a) has suffered harm, is suffering harm, or is at
unacceptable risk of suffering harm; and
(b) does not have a parent able and willing to protect the
child from the harm.”
“Section 9 - What is harm
(1) Harm, to a child, is any detrimental effect of a significant
nature on the child’s physical, psychological or emotional
wellbeing.
(2) It is immaterial how the harm is caused.
(3) Harm can be caused by—
(a) physical, psychological or emotional abuse or neglect;
or
(b) sexual abuse or exploitation.”
Child protection orders can be made for up to one year if custody or guardianship of the child is not granted[1], up to two years if custody or short-term guardianship is granted[2], and until the child turns 18 if long-term guardianship is granted.[3]
[1] s62(2)(a)
[2] s62(2)(b)
[3] s62(2)(c)
Section 121 of the Act outlines the courts powers in relation to appeals:
“In deciding an appeal, the appellate court may -
(a) confirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision and substitute another decision; or
(d) set aside the decision appealed against and remit the matter to the Magistrate or Childrens Court that made the decision.”
Appeals against long-term guardianship orders must generally be decided on the evidence that was before the court in the proceedings at first instance[4].
[4]See s120 of the Act
In order for the Court to make an order for long-term guardianship the Court must be satisfied that the child is a child in need of protection namely a child who has suffered harm, is suffering harm or is at an unacceptable risk of suffering harm and without a parent who is able and willing to protect the child. Harm is defined as any detrimental effect of a significant nature on a child’s physical, psychological or emotional well being.
Findings at Trial
The Department, in making out its case against KE and SW submitted that JL was and will continue to be at an unacceptable risk of (a) physical harm, (b) neglect and (c) potentially sexual abuse in the foreseeable future.
The Magistrate in making his decision indicated that there were concerns that led him to conclude that the child was a child in need of protection and that the parents did not have the ability to care for the child:
(a) because of their intellectual difficulties, particularly considering JL was a child with difficulties herself;
(b) because they were transient and unable to maintain stable accommodation;
(c) because the mother has a history of emotional problems and SW has previously had allegations of sexual abuse made against him; and
(d) because the child needs a high level of support throughout her life including attendance at medical appointments, continuous therapy and early intervention to assure she develops to her full potential.
In order to deal with this appeal, it is necessary to consider each of the above matters separately.
Inability to care for the child
Soon after the child’s birth maternity staff at Toowoomba Base Hospital expressed concerns about KE’s ability to care for and parent JL. Nurses claimed that she needed more than the usual amount of guidance and assurance in caring for the child whilst in hospital. As a result of these concerns, the Department organised supported accommodation for KE and the child at the House of Nathan and then the Ellen Barron Family Centre. Unfortunately KE decided to leave this accommodation before it was thought that she was ready and as a result JL was taken into the care of the department when she was 20 days old.
What followed thereafter were visits with the child by KE and SW which were sporadic at first but by the time this application was made more regular contact was taking place. During those visits there was a need to support KE and give her direction in relation to preparing bottles, feeding, nursing, interacting, settling and playing with the child. SW at times appeared bored and acted inappropriately in terms of engaging with the child. It was noted that KE’s perceptions of the child’s needs were simplistic and concrete.
Whilst these matters are clearly matters of concern, it has to be noted that KE is a young person who has not had a stable family life where she was able to observe or help with caring for younger children. She has been raised in foster care herself. This is her first child and her contact with this child has been minimal, only recently being increased to one and a half hours once a fortnight until the making of this application. The parents’ ability to be able to read the child’s needs and act appropriately towards the child must be viewed whilst bearing in mind that they have not been living with the child at all, both parents have little experience with young babies, and they do not have a basis from which to judge a child’s needs generally.
There was evidence before the court that interactions between the mother and the child had improved with the passage of time and that with the more recent visits there has been easier interaction and the child had started to settle more readily, although assistance and reassurance was still required.
A report was supplied for the hearing of this matter by Bertina Tubaro, a psychologist, who reviewed the material before the court. She noted that the main issue about the contact between the parents and the child was the higher need for guidance and support of the parents in their interactions with the child. However her report also noted, that looking at the evidence of Sally How:[5]
“I noted from the Department’s affidavit material that the parents had been attending contact consistently in October and November of 2009. I did not note anything extraordinary in terms of the child’s responses. It seems she was unsettled at times and then settled with her parent’s responses to her. However I thought the main issue appeared to be the parent’s ability to interact with, respond to and care for the child in the absence of significant prompting or directing from the CSO supervising the contacts.”
[5] See paragraph 27 of her report
Ms How reported that since resuming the fortnightly visits, the quality of contact has improved in the sense that the parents are becoming more accustomed to the process and the child is getting used to her parents. In line with observations noted in the affidavit material, Ms How noted that the contacts were still however, very hands on, such that the parents are reliant on instruction from the officer supervising the contact. She reported that the mother remains very unsure of what to do or how to respond and frequently seeks guidance from the CSO. She said the father usually “just sits there and plays with his phone or the toys”. However it should be noted from Ms How’s last affidavit that the child was settling with the parents towards the end of the contact visits, that KE was very warm towards the child and was acting appropriately towards the child namely giving the child lots of cuddles and kisses, brushing her hair, laying her gently on the nappy mat on the floor, checking her nappies, distracting her when she became upset, feeding her and assisting the child to walk around the room[6].
[6] See affidavit of Sally How dated 16 August 2010
The ability of the parents to care for the child was discussed in the evidence of Ms Anderson. Ms Anderson noted that KE has only a superficial understanding of what was required to look after JL in terms of her health and personal development and that her understanding and that of SW was very concrete. She said her concern was that there is a limited ability to independently perceive dangers and make use of that information. KE, she thought, could learn very simple skills but there were concerns about her ability to make good judgments in the future. She also had a poor memory. She would only benefit from very simple and repetitive presentation of information that is practical. Similar problems existed with SW.
Ms Tubaro in her evidence before the court said[7]:
[7] Transcript page 1-78, line 45
“I thought that they were good in their interactions but they needed a lot of prompting and guiding, but they were certainly warm and willing to take on advice and direction in putting things – using suggestions as soon as they’re made so, they’re very open in that regard and JL responded well to her parents as well, but they did need that continual guidance.
Q. So really no initiative but more assistance from yourself while you’re there.
A.Oh you know, I think, in fairness, there was some initiative of their own but I think that they just - they really did need a lot of prompting and assistance and whether or not that’s something that would lessen with a greater amount of contact as time goes by, I mean, that just can’t be tested under the current - how the circumstances have been. But all I can say is that during my observations, while they were very good in their interactions and the child responded well to them, they really did need a lot of prompting – try to do this - and describing, you know, what JL might be needing.”
Ms Tubaro suggested that reunification could only possibly take place if the parents were able to get themselves in a position where they could participate in the process by moving to Toowoomba. She indicated that it was difficult to know how they would progress with the contact if they were given more contact. When questioned about Ms Anderson’s opinion and her report, Ms Tubaro said[8]:
[8]Transcript at 1-84
“I mean in terms of her memory ability, from interviews you know, [I] found that she had a good memory for a lot of things. So - and whether or not she can take on new information and transfer that over the medium or long term, I mean that would need to be tested. But certainly – look, the main difficulty I find - I have found with the parents is that – is their transience and their not being within close enough – in close enough proximity to maintain or to have regular contact with the children in order for there to be observations over a significant length of time to see what their parenting capabilities are. You know, how much is – how much is their cognitive ability, if you like, influencing their ability to parent or to learn how to parent, and how much of that is maturity as well. You know, people can’t be penalised for having an - can’t be necessarily penalised to parent children because they have an intellectual disability, that works on a continuum. Whether or not, you know, most of their performance is related to their level of education or to some actual deficit, I don’t know. So I think the main issue is that it hasn’t been demonstrated. They haven’t been able to demonstrate that, and as long as they have continued to live a great distance away, it just simply can’t be tested.”
Ms Tubaro did note in her report:[9]
“The mother said she completed her schooling after Year 12 noting that she received special education. The mother said she has “a learning disability” which is not too bad. She said she is starting to do things for herself such as cooking. She said she can read and write and spell. Comment: I got the mother to read the Consent Form for me (a form I ask people to read and sign prior to interviewing) and noted she read that form with relative ease. I checked her comprehension and she was able to demonstrate her clear understanding of the contents of that form.”
[9]Tubaro’s report at paragraph 56
In terms of their inability then to look after this child, Dr Adsett gave evidence that the child has global development delay [namely delays in development, speech, comprehension and fine and gross motor skills], limited emotional behaviour, stereotype behaviour [repetitive mannerisms], subtle head growth acceleration and hypotonia. Limited emotional behaviours can have an implication for emotional development and emotional experiences as it may deprive a child of the development of interactive skills. Accelerated head growth was no longer an issue. He said the evidence suggests that the problems experienced by the child are not related to her environment. He gave evidence:[10]
[10]Transcript at 1-52
“Q. So what would be your view of JL’s prognosis into the foreseeable future?
A.Well I’m quite concerned, because of that delay. Also the fact that she’s still got the low tone. It does suggest that her brain, as such, is not functioning the way other children are and – and is unlikely to improve. Whether or not with – a lot of investigations are able to give an explanation for that is yet to be seen, but the prognosis is poor.
Q. And what type of medical therapy or intervention do you think that JL will need in the future?
A. Well I suspect there will be no medical intervention. I guess I have looked pretty hard for all the medical things that a simple treatment would correct. So it’s more likely to be intervention as the second option that you mentioned, and that’s what we would call early intervention and stimulation, and that’s the standard thing to do. But if there is a central brain problem causing the delay, it’s still not going to turn it around. It might help her cope better with her delays or teach her, in a more intensive way, some simple things that other kids learn first time, so that would be supportive – supportive intervention, rather than something that’s going to turn the whole thing around.
Q, So in terms of supportive interventions, what would you require of the carers or the parents of JL to do to assist her to, I suppose, maximise her capacity? What would they be required to do?
A. Oh I guess have a variety of things…. I suppose it’s just normal, stimulating, supportive, loving parent - parent techniques, but I don’t know what else I can say. Stimulation in activities, variety of activities, stimulation of speech, good verbal interaction, encouraging eye contact, encouraging participation. In general these sorts of things seem to make a lot of …….
Therapists will talk a lot about posturing and exercises and things, but in these situations of central hypotonia and developmental delay - the measurable impact of that is small.”
The issue of sexual abuse and emotional problems.
There were allegations made in 2002 and 2006 in relation to SW and sexual abuse of two young children. The allegations of sexual abuse were not persisted with at the hearing of this appeal. Some of the allegations involve incidents alleged to have occurred when SW was 13 and 15 years of age. Unsurprisingly, the allegations were dismissed as being sexual exploration.
More recent allegations are currently unsubstantiated. I do not intend to rely on those allegations in determining this appeal in the absence of more definite evidence.
KE suffers from post traumatic stress disorder and depression. She has in the past been admitted to mental health facilities although does not seem to have needed such admissions in recent times. She does suffer from epilepsy and from time to time has absent seizures. The duration and frequency of those seizures are not documented.
Lack of stable accommodation
There is an issue with poor budgeting skills, frequent homelessness and transience. KE and SW moved house between November 2008 and January 2010 on 12 occasions. Whilst the parties were waiting for this appeal to be heard they had moved on at least further two occasions. On occasions they have appeared unwashed and suffering from poor hygiene at contact visits and at court hearings. On some occasions they have failed to attend contact because they are without money. They are both living on disability support pensions which cannot be easy in the current economic climate.
Provision of medical and therapeutic intervention.
The evidence of Dr Adsett suggests that JL has developmental problems that are organic and that while there may be some interventions that will help the child is unlikely to change in terms of her delayed development. He said in a perfect world for her the home would be stable and the parents would not be intellectually challenged. No medical interventions are needed. There is a suggestion that there are long term therapies that may help but in his oral evidence at the hearing of these matters he seemed to suggest that these would not make a significant difference, although they would help her reach her full potential.
Discussion
The learned magistrate seemed to rely on the evidence of the doctor that the child would need a high level of support including continuous therapy and early intervention to reach her full potential as a basis for concluding that with their transient lifestyles and intellectual difficulties, the parents would not be able to look after her and that she was a child in need of protection. However the test under the Act is not whether a child will reach their full potential, but rather, whether the child is one in need of protection because it has, is or likely to suffer harm.
In this case the child has not suffered and is not suffering harm. The magistrate must have found that the child was an unacceptable risk of suffering harm in the future. The Department did not pursue at this hearing any allegations of potential sexual abuse or exploitation to prove harm. There does not seem to be a suggestion that she will suffer from physical, psychological or emotional abuse. There is a suggestion that the parents lack of hands-on experience with the child and inability to quickly adapt to change, coupled with the transience of their lifestyle and lack of financial management may lead to neglect of the child resulting in a detrimental effect on her physical, psychological and emotional wellbeing. This much seems to be supported by the evidence.
However, it was suggested by Ms Tubaro, and sensibly so in my view, that it is impossible to say that these problems cannot be overcome with time. If the parents are able to find stable accommodation near the child and are able to work with the Department they may be able to take on the care of the child. There is no doubt that KE loves JL and would be happy to work towards that outcome. Whether it will be possible for them to find suitable accommodation will be determined with the passage of time.
Conclusion
In my view given the circumstances of their accommodation difficulties and budgeting difficulties combined with the child’s high needs and their intellectual difficulties the child is a child who is need of protection and her parents are not presently able to care for her. However, the question remains whether the child has parents who are not able and willing to protect JL within the foreseeable future or whether her need for emotional security will best be met in the long term by making the order.
There is no doubt that JL was well settled with Ms Neal who was her foster carer at the time of the hearing. However at the time of the hearing it was also noted that Ms Neal was suffering from difficulties with her eyesight and the child would have to be moved to another carer so the stability of her care arrangement was about to change regardless of the outcome of the case. KE, the mother of the child has expressed a great willingness to care for JL. SW has stated on a number of occasions that he is not willing to provide full time care for the child although he has been present at all mentions of this matter and was involved in contact visits. From birth until the time of hearing of the matter the mother and father have been unwilling and or unable to change their circumstances or address the concerns of the Department and they have not moved to Toowoomba to be close to the child. It was noted by Ms Tubaro that some of the assessments made in relation to these parents may simply show a lack of maturity and it is difficult to know whether things may improve with increased contact and intervention by the Department.
In my view it is not in the interests of the child that a long-term guardianship order be made at this stage. There is some evidence of improved relations between the child and her mother and father and with increased contact that could well continue to improve as the child ages. Things may change in terms of the needs and the support needed for the child and I am not convinced that KE in particular is not able to learn how to interact and care for the child within the foreseeable future. Further I do not see that the child’s need for emotional security is best met by making a long-term order.
In my view the magistrate erred in finding that a long term guardianship order should be made. The department did not prove that the parents cannot in the future care for the child or that it served the child’s need for emotional security to make a long term order.
In my view the appeal should be allowed and the order changed to one of short-term guardianship for two years as was originally recommended by Ms Tubaro in her report.
Order
Appeal allowed. The order of the Childrens Court is set aside. The Chief Executive is granted short term guardianship of JL for a period of 2years.
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