Kew v SF

[2019] VMC 8

IN THE MAGISTRATES’ COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL DIVISION OF COURT

Case No. J11902866  

DSC KEW	Informant
v
SF[1]	Defendant

[1] In order to avoid identification of the accused and children, this decision has been anonymised by the adoption of pseudonyms.

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	30 APRIL, 1 MAY & 3 JUNE 2019
DATE OF DECISION:	4 OCTOBER 2019
CASE MAY BE CITED AS:	KEW v SF
MEDIUM NEUTRAL CITATION:	[2019] VMC008

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COMMITTAL HEARING – Carer of 3-4 year old child subject to a Care by Secretary Order – Charged with Intentionally Causing Serious Injury (s 16 Crimes Act) – Negligently Causing Serious Injury (s 24 Crimes Act) and being a person who has a duty of care in respect to the child and did intentionally fail to take action that resulted in the child’s physical development or health being significantly harmed (s 493(1) Children, Youth and Families Act 2005).

Submissions filed by Accused on 30 August 2019

Submissions filed on behalf of Director of Public Prosecutions on 9 September 2019

Submissions Filed in Response by the Accused on 13 September 2019

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APPEARANCES:	Counsel	Solicitors
For the Informant	Ms Guesdon/Ms Hamill	DPP
For the Defendant	Ms Munster	VLA

HIS HONOUR:

1. This matter proceeded as a Committal Hearing on 30 April, 1 May and 3 June 2019.

2. Ms F who is the maternal aunt of the child, AR (DOB 22 March 2013) is aged 27 years and was charged on 19 July 2018 with:

(i) Between 31 January 2017 and 13 February 2018 did without lawful excuse intentionally cause serious injury to the child, contrary to S 16 of the Crimes Act;

(ii) Between 31 January 2017 and 13 February 2018 by negligently omitting to provide adequate care for a child for which she had a duty of care, did cause serious injury to the child, contrary to S 24 of the Crimes Act; and

(iii) Between 31 January 2017 and 13 February 2018 who had a duty of care in respect of the child, did intentionally fail to take action that has resulted, or appears likely to result in the child’s physical development or health being significantly harmed, contrary to S 493(1) of the Children, Youth and Families Act 2005.

3. It should be noted that before laying charge (iii), VPOL are required to consult with the Secretary of the Department of Health and Human Services in accordance with s493(2) of the Children, Youth and Families Act 2005. On 29 June 2018, the Assistant Director of Child Protection, Inner Gippsland, endorsed the decision by Victoria Police to proceed with that charge against SF.

4. The court heard evidence from:

-Ms Vicic, Team Manager and Senior Child Protection Practitioner

-Ms Cawthan, Senior Child Protection Practitioner

-Ms Middleton, Senior Child Protection Practitioner

-Ms Hunt, Early Childhood Teacher

-Dr Tucker (Westgarth), General Practitioner and Paediatric Registrar at the Latrobe Regional Hospital

-Dr Smith, General Practitioner and Forensic Paediatrician at the Royal Children’s Hospital and

-The Informant – DSC Kew.

-Additional documentation and reports were contained in the HUB.

5. The evidence indicated that AR was placed into the kinship care of Ms F on 26 June 2015 by the Department by way of an Interim Accommodation Order. AR had been removed from the care of her parents, SF and JH due to their severe neglect of her. A Care by Secretary Order was made by the Children’s Court on 7 September 2016 and subsequently extended for a period of two years on 14 November 2018. Ms F also had parental responsibilities for her own child, M (DOB 14 October 2013) during the relevant period and a baby for a period of months from May 2017. A Care by Secretary Order pursuant to s289 of the Children, Youth and Families Act 2005 confers parental responsibility for the child on the Secretary to the exclusion of all others and therefore the Department and Ms F owed a duty of care to AR.

6. As a consequence of the child being observed as being severely malnourished and in a “life threatening” state, she was taken from Ms F on 13 February 2018 and admitted to the Latrobe Regional Hospital where she remained until 5 March 2018.

7. The medical evidence indicated that AR was taken to Emergency Care at the Latrobe Regional Hospital on 13 February 2018 by Ms Vicic, following a home visit where Ms Vicic (who had taken over the case management of the child from Ms Middleton) observed that AR appeared to be severely malnourished. The child was aged 4 years and 11 months at that time. The medical records obtained by the Hospital indicated that her weight, between 1 July 2015 and 8 May 2017, varied between 14 kg and 12.6 kg. On examination, she was observed to have:

oDirty feet;

oHead lice;

oEmaciated face and limbs with widespread thick lanugo hair;

oWasting of her upper thighs and buttocks;

oSwelling of her knees;

oA weight of 9.3 kg;

oRequired assistance moving from lying to sitting; and

oVarious body markings, some of which were assessed as to have been unlikely to have been self-inflicted.

8. AR was commenced on high-risk refeeding and by time of discharge on 5 March 2018 she weighed 13.3 kg which was a weight gain of 4 kg over 21 days. At outpatient’s review on 13 March, she weighed 15.4 kg, on 20 March 15.7 kg and on 3 April 17.1 kg.

9. Dr Tucker (Westgarth) gave evidence that AR’s condition was indicative of severe malnutrition, secondary to neglect and deprivation of food and that she has also developed significant emotional harm which will require extensive psychological support. She said that on admission to the Hospital, AR was significantly traumatised. She told the court that AR was clinically unable to lift herself up and was very unwell and was not clinically stable. In her opinion, AR was malnourished over a period of time, but she was unable to give a precise timeframe other than saying that in her opinion, it commenced in 2015 based on her weight charts. She also said that the number of marks on her body and the locations of those markings were of concern to her, particularly those around her face. She dismissed the bruising as being from accidental causes and believed the cause was from malnutrition as a result of deprivation of food.

10. Dr Smith provided a report dated 13 June 2018 without examining AR.  She told the court that the improvement in AR’s weight, growth and general health when adequate calories and nutritional supplements were provided, proves that starvation was the direct result of her condition over many weeks to months. Dr Smith also noted that continued starvation would have resulted in the child’s death without intervention. She disagreed that AR would have recovered without hospital admission and said that as at February 2018 AR had “severe malnutrition”. Dr Smith told the court that according to her growth charts most of the malnutrition occurred in 2017 with her muscle wasting occurring over a period of months.

11. The evidence from the Child Protection Practitioners was:

-Ms Middleton was allocated to case manage the child in March 2017 and continued to do so until February 2018. She visited the family home every 6 weeks or so to monitor her wellbeing and to converse with Ms F about the child’s welfare and needs. In her Statement she said that in general, unless specific concerns are raised, there is not a lot of contact with the child as the Department is more focussed on the child’s environment and care. Ms Middleton stated that until her last visit on 29 January 2018 (15 days prior to the hospital admission) she considered Ms F to have been a model carer of AR and her own child, M. Ms Middleton stated that at that visit she did notice for the first time that AR’s face was quite thin, she appeared to have lost a significant amount of weight and had a small bump on her forehead. Ms Middleton also stated that when she questioned Ms F about the bump on AR’s forehead, she was told that she had a fall a couple of weeks ago and when asked about her weight loss she said that she had come down with ‘gastro’ and had a loss of appetite. Ms Middleton said that she insisted that Ms F take AR to the doctor.

Ms Middleton told the court that when she conducted regular visits at the home from March 2017, every six weeks or so, she would check on the AR’s welfare by physically sighting her and inspecting the home environment. She confirmed that she did not document any concerns until her visit on 29 January 2018. She also confirmed that in August 2017, the Department commenced Permanent Care planning which she approved as she had no concerns regarding Ms F having permanent care of AR. Ms Middleton also confirmed that the behaviour of AR did deteriorate when her biological mother failed to attend scheduled visits. She also confirmed that case management was to be transferred to VACCA but is unsure when that occurred. Ms Middleton agreed that under the Care by Secretary Order the Department have sole parental care and are the child’s legal guardians and have a duty to ensure ongoing assessment of child and the carer which includes visiting the home, sighting the child, conferring with the carer, contacting all those who have contact with the child and obtaining relevant educational records. She confirmed that she did not have any concerns regarding the child’s welfare or her care until 29 January 2018.

Ms Middleton could not recall if Ms F had expressed concerns about AR’s feeding or her weight but agreed that she had expressed concern regarding AR’s behaviour following visits or cancelled visits with her biological mother. Ms Middleton did concede that on occasions reports are written by Protection workers without physically sighting the child. She told the court that she commenced writing a Cultural Support Plan but had not finished it by the time her involvement with AR ceased. She agreed that AR appeared to have a strong emotional connection to Ms F and her daughter, and they all loved each other deeply. She also told the court that whilst M and AR were in the care of Ms F she did look after another baby who had been removed from his parents due to their neglect. She told the court that she believed that baby was in Mr F’s care from May 2017 for a number of months. She agreed that from time to time Ms F did require food vouchers which were provided but that did not set off any ‘alarm bells’ with her. She could not recall any other support being given to Ms F by the Department. Miss Middleton also told the court that she could not recall if AR was present every time she visited the home but said when she was, she did not speak to her on each occasion.

A Case note dated 24 August 2017, created by Ms Middleton indicates that Ms Middleton met with Ms F on that date and Ms Middleton was told by Ms F that AR was attending four-year-old Kinder. The document also indicates that AR did not have any special health needs, that she goes to a speech therapist and that she will be attending a paediatrician.
A Transfer Summary document entered by Ms Middleton and dated 31 October 2017, records that AR presents as physically well-nourished and no concerns have been identified for her health. It also records that she is attending the Early Learning Centre three days a week, that her emotional and behavioural development is age and stage appropriate and that no concerns are noted. It also records that Ms F provides her with a safe and predictable environment while meeting all her developmental needs.
A Case note entered by Ms Middleton dated 15 December 2017, indicates that she completed an assessment with Ms F that day.
A document titled Child/Young Person’s Profile completed by Debra Matheson from the Department and dated 11 January 2018 was also tendered. It records that AR is meeting all of her developmental milestones and no concerns have been identified for her health. It also records that she is to be taken to the doctor by Ms F when unwell and for any medical treatment to be followed which includes the completion of an asthma assessment as from 11 January 2018. It records that AR is attending Kinder and is progressing well.

Ms Vicic was allocated to case manage the child on 7 February 2018 and as a consequence of multiple reports concerning the child’s welfare on 9 February, she conducted a home visit on 12 February with others, but no one was home. A further home visit on 13 February was also unsuccessful but at 3.30 p.m. that afternoon, Ms F and her sister attended the Department’s office with the child. After being concerned about the child’s appearance and after questioning Ms F, Ms F and her sister told Ms Vicic that she had taken the child to the doctors the week before and the child had been diagnosed with ‘gastro’ and the ‘flu’. Ms Vicic stated that with Ms F’s approval the child was taken to the Latrobe Valley Hospital. Ms Vicic could not recall that she had told Dr Tucker on 14 February 2018 that the Department had last visited the family home three weeks previously nor could she recall a document dated 11 January 2018 authored by Debra Mathieson where it indicated that the Department did not have any concerns regarding AR and that she was “meeting all milestones and there were no concerns for her health”. Ms Vicic told the court that she was the child’s allocated practitioner from 7 February 2018 to April 2019 and that the child’s new foster carer has informed her that AR has challenging behaviours which include attachment behaviours and feeding issues. Ms Vicic also told the court that the Kindergarten had not informed the Department that AR was not attending after May 2017 and that Ms F had told the Department that she was attending. In answer to a question from the court as to how regular home visits are conducted by the Department on a child who is under their care and supervision, she said once per month. She said in this case the December 2017 visit did not occur as it was cancelled by Ms F as well as the scheduled visit on 8 January 2018.

Ms Cawthan stated that she was allocated the case involving Ms F’s child, M, on 14 February 2018. She said that when she observed M on 22 February, there were no signs of malnourishment or injuries. On 28 February, Ms Cawthan inspected the premises and noted a strong ‘dog smell’ and dog faeces in the house and dirty sheets on M’s bed. Ms Cawthan also reported that she noticed little amounts of food in the house. She agreed that Ms F complied with all recommendations made by the Department and there were no grounds to make a Protection Application on behalf of M.

12. The statement of Ms Hunt indicated that according to the Kindergarten records, AR only attended 15 days out of a possible 100 days between February and May 2017 whereas M attended 81 out of a possible 96 days. Ms Hunt told the court that Ms F had indicated to her that she was unhappy with the care given to AR at the Kindergarten and had made a complaint that AR had been injured whilst at kindergarten by another child. Ms Hunt noted that when she observed AR, she was concerned about her physical wellbeing but particularly the fact that she always appeared to be hungry and would gorge herself whenever food was available. She told the court that despite her concerns she did not report them to her employer or the Department. Ms Hunt said that she was aware of her legal obligations to contact the Department if she had concerns but said that she did not do so because she had no evidence.

13. DSC Kew told the court that no disclosures were made by AR about Ms F’s care of her when he interviewed her on 14 March 2018. He also told the court that Vpol did not conduct any investigations into the possible negligence of the Department in relation to their care of AR.

14. Ms F participated in a Record of Interview with the police on 19 July 2018. In her ROI which was tendered, she stated:

that she could not remember the reason why AR was taken from her by the Department but believes it could have been because she had lost “a bit of weight” (Answer to Q24);

-when asked to explain how that occurred, she said that AR would get sick constantly and thought it was her immune system. She said that she was taking her to the doctors constantly, but she was getting the flu and wasn’t eating properly. (Answer to Q28);
-she could not remember which doctor she took AR to. (Answer to Q30)
-she said that she thinks she noticed that AR first lost weight around November or December 2017 (Answer to Q65);
-She said that the girls were fed a choice of Weet-Bix, cornflake cereal or toast and juice for breakfast and water. (Answer to Q98);
-she said that the girls would have sandwiches, cheese and dips, fruits and muesli bars for lunch. (Answer to Q101);
-she said the girls would have vegetables, meat, potatoes or lasagne and chips for tea. (Answer to Q103);
-she said that the girls would have snacks from each other’s lunch boxes. (Answer to Q109);
-she said that the girls would help themselves to food from the cupboards or they would go out to buy some snacks. (Answers to Q116-7);
-she denied ever smacking the girls. (Answer to Q136);
-she said the girls had the same amount of food. (Answer to Q139);
-she denied knowing that AR was covered in marks or bruises because she said AR wanted to do everything herself including, dressing herself & changing herself. (Answer to Q174);
-when told that whilst at the Hospital AR required assistance in moving from one position to another and that she could not even sit or stand up by herself, she said that she was able to do things by herself although did on occasions asked for some help with some things. (Answers to Q175-6);
-when told that the records indicate that there were missed medical appointments, she said that she forgot about them as she did not have a really good memory. (Answer to Q195).

Conclusion

1. It was submitted on behalf of Ms F that she should be discharged on all charges on the basis that the evidence is not of sufficient weight to support a conviction.

2. In accordance with law, the court must determine whether a reasonable jury could, or could not, convict Ms F on the evidence presented after assessing the credibility of witnesses and after taking the prosecution case at its highest. After undertaking this process, the court may commit Ms F to stand trial on any or each of the indictable offences.

3. It is not in dispute that as at 13 February 2018, AR was in extremely poor health, which, according to Dr Smith was due to ‘starvation’ over “many weeks to months”. The issue for the court to determine is whether Ms F is criminally responsible for her state of health.

4. In relation to Charge 1 (ICSI), the prosecution must prove that:

   a.    AR suffered a ‘serious injury’; (that being; severe malnutrition and physical injuries in the form of ‘marks’ and bruising’ which Dr Tucker dismissed as being from accidental causes. Dr Tucker attributed the ‘bruising’ to severe malnutrition.)

   b.    That it was caused by Ms F;

   c.    That Ms F intended to cause the ‘serious injury’; and

   d.    Ms F acted without lawful justification or excuse.

5. In relation to the ‘marks’ on AR’s body, a cause cannot be established and taken in isolation they do not meet the definition of a ‘serious injury’. In relation to her ‘severe malnutrition’, the evidence indicates that it was not life threatening providing she was given appropriate treatment. However, her medical condition was substantial and protracted. Dr Tucker gave evidence that her malnutrition commenced in 2015 and Dr Smith gave evidence that it occurred over many weeks to months and that according to her growth charts most of the malnutrition occurred in 2017 with her muscle wasting occurring over a period of months.

6. On the evidence presented, it is difficult to assert intention noting that AR had been experiencing feeding issues since 2015, had experienced a loss of weight to due gastro on occasions and had variable weight gains and losses since 2015. There is no evidence to support that there were intentional acts or behaviours by Ms F resulting in physical injury or severe malnutrition.

1. The prosecution conceded in its submissions that the evidence is not of sufficient weight to establish intention and accordingly, I will discharge Ms F in relation to Charge 1.

2. In relation to Charge 2 – negligently omitting to provide adequate care, causing serious injury, the prosecution must prove;

   a.    that Ms F owed AR a duty of care;

   b.    that duty was breached by criminal negligence;

   c.    the asserted acts breaching that duty were committed consciously, voluntarily and deliberately; and

   d.    that breach caused AR to suffer a ‘serious injury’.

3. There is no dispute that Ms F and the Secretary of the Department (who, pursuant to s 289 of the CYF Act, has parental responsibility of AR to the exclusion of all others) owed AR a duty of care. Ms F had a duty to provide AR with adequate food, shelter, medical care and to protect her from physical, emotional and psychological harm. She was entrusted to provide her with what is required for her healthy development and to protect her against harm. The duty of care owed by a carer to a young child is a ‘high’ one. The dependence of the child on Ms F’s care and protection is self- evident. The evidence supports a finding that her medical condition leading up to and as at 13 February 2018 meets the definition of ‘serious injury’ for reasons previously stated.

1. The issue to determine is what deliberate acts committed by Ms F breached the duty of care she owed to AR and whether those acts, viewed objectively, were below the standard of care that a reasonable person would have exercised in the position that Ms F found herself in.

2. It is of some importance, that although the medical evidence suggests a deteriorating state of health “from 2015” (Dr Tucker) or over “many weeks to months” (Dr Smith), the Department did not notice or report any concerns until 29 January 2018, two weeks prior to AR being admitted to hospital, notwithstanding regular home visits conducted by Ms Middleton from March 2017. The Department, having parental responsibility for AR and regularly reviewing her progress and her care did not notice any issues or raise any concerns about her care and welfare until 29 January 2018. In fact, in August 2017, the Department was taking steps for AR to be placed on a Permanent Care Order with Ms F pursuant to s 321 of the Act. Surprisingly, in view of the medical evidence, Ms Middleton stated that until her last visit on 29 January 2018, she considered Ms F to have been a “model carer” and on 11 January 2018, approximately one month prior to her admission to hospital it was reported that AR was “meeting all her developmental milestones and nil concerns had been identified for her health”.

1. Notwithstanding what appears to be the Department’s failures, it is apparent on the evidence presented that whilst in Ms F’s care, AR:

-Was not provided with adequate food and nutrition over a prolonged period; and

-was not provided with appropriate medical treatment and review over a prolonged period.

1. The expert opinion of Dr Smith, Forensic Paediatrician, indicates that most of AR’s malnutrition occurred in 2017 with her muscle wasting occurring over a period of months. This is consistent with the evidence of Ms Hunt, Kindergarten teacher, who observed during AR’s 15-day attendance between February and May 2017, that AR always appeared to be hungry and would gorge herself whenever food was available. She told the court that she was also concerned about AR’s physical well-being. It is also noted that on 8 May 2017 AR, who had a recorded weight of 12.6kg was referred to the Latrobe Valley hospital for “failure to thrive” by a General Practitioner which appears to be inconsistent with Ms F telling the doctor that AR had a good appetite and was eating all meals. Notwithstanding what appeared to be obvious health issues, Ms F failed to take AR for scheduled medical reviews on 27 June 2017 and 25 July 2017.

2. Ms F was also unable to explain why she was able to take her own child, M, to Kindergarten on 81 of a possible 96 days between February and May 2017, with AR only attending 15 days of a possible 100 days. The reason for her own child continuing to attend for the remainder of the year, but not AR and without notification to the Department is unclear as is her indication to Ms Middleton on 24 August 2017 that AR was still attending Kindergarten, when in fact she had not attended since May.

3. In addition, the weight records of AR indicate a significant weight loss between March 2017 (14kg) and February 2018 (9.3kg) for a 4-year 11-month aged girl. The deterioration in her physical appearance, weight loss, muscle wasting, and the growth of lanugo hair should have raised significant ‘alarm bells’ to a reasonable person, in the position of Ms F, who owed a duty of care to her when considering that her own child was not exhibiting similar signs. The evidence indicates that she either ignored the signs or was ambivalent about them. The failure of the Senior Child Protection Practitioner, Ms Middleton, to observe this significant deterioration in AR’s physical appearance when conducting home visits is inexplicable.

4. The fact that Ms F was only 25 years of age, single and caring for her own child aged 4 years and 3 months at the time and being under supervision and reliant on guidance and direction of the Department, does not abstain her from the responsibility of providing full and appropriate care to AR, which she did not do. AR’s physical state at 29 January 2018 was, as Ms Middleton stated, “alarming”. The photographs taken on 13 February and the medical examination findings on that date are ‘harrowing’. Her poor physical state would and should have been apparent to Ms F for some time. The evidence indicates that she chose to ignore it.

5. The evidence would permit a properly instructed jury to find that Ms F deliberately failed to provide adequate food, nutrition and care to AR over a significant period thereby breaching the duty of care she owed to her. Accordingly, I find that the evidence supports that she be committed to stand trial in relation to charge 2.

6. In relation to Charge 3, intentionally failing to take action likely to result in or resulting in significant harm, the prosecution must prove;

   a.    That Ms F owed AR a duty of care;

   b.    that she failed to take action;

   c.    that failure was likely to result in, or did result in, the physical development or health of AR being significantly harmed, and;

   d.    Ms F’s failure to take action was intentional.

1. As stated by King J in Q v Nguyen [2012] VSC 578 (para 25); “the prosecution would have to prove in terms of ‘mens rea’ that the accused intended to take a specific action that was likely to result or had resulted in one of the three states listed under s 493(1)(a) or under s 493(1)(b), that the accused intended to refrain from doing an action the refraining from which was likely to result in or has resulted in the child’s physical development or health being significantly harmed”. And at para 29 Justice King stated; “these offences require positive decisions on the part of the persons charged, including a positive decision to take or not take an action, it is not a matter of inadvertence or carelessness. That is what the word intentionally means in s 493. The offence requires a positive decision to take or refrain from taking a particular action and that action must be of a certain nature”.

2. It is arguable that Ms F made a positive decision not to provide AR with adequate food and nutrition over a prolonged period after obviously observing the deterioration in her physical state and health in the “weeks and months” leading up to 13 February 2018. It appears that she made a deliberate decision not to seek professional help when observing AR’s deteriorating condition. Her inaction in relation to both matters ultimately resulted in significant harm being caused to AR. I might add, that in my opinion, the Department, share that culpability. The Department do not delegate their responsibility or their duty of care to children by placing them in out of home care. Home visitation should not be cursory in nature as appears to be the situation in this case. In my opinion, the Department was in breach of its duty of care to AR.

3. I accept the submission by the prosecution and agreed to by the accused that charge 3 is a Summary offence as noted by Justice King in Q v Nguyen and therefore, not subject to determination by the committal process. It is therefore appropriate that charge 3 be transferred pursuant to s 145 of the Criminal Procedure Act 2009.

1. I also wish to make some further comments in relation to the matter. I regularly sit in the Family Division of the Children’s Court. I understand and appreciate the enormous stress and pressure that Child Protection Practitioners are subjected to having regards to the fact that the Latrobe Valley region has the highest number of child Protection Applications per head of population in the State, the highest number of children in Out of Home Care, the highest number of Aboriginal children in Out of Home Care and the highest conversion rate of child Protection Reports that result in child Protection Applications. Notwithstanding the workload of Child Protection Practitioners, the regular monitoring of and supervision of Carers needs to be thorough. Home visits involving a cursory observation of a child without meaningful engagement and without verification of what the carer states regarding feeding, attending kindergarten, school or medical appointments is meaningless and a clear breach of the duty of care owed by the Department to the child. If the cause is a ‘resource issue’, it needs to be addressed immediately.