LBJ v Department of Communities (Child Safety Services) and CP

[2010] QCAT 531

CITATION: LBJ v Department of Communities (Child Safety Services) and CP [2010] QCAT 531

PARTIES:	LBJ
v
Department of Communities (Child Safety Services) and CP

APPLICATION NUMBER:   CML075-10

MATTER TYPE: Children’s matters

HEARING DATE:     27 October 2010

HEARD AT:  Brisbane

DECISION OF: C Endicott, senior member

DELIVERED ON: 27 October 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Request for confidentiality refused

CATCHWORDS :  CONFIDENTALITY – request to restrict disclosure of documents to party – section 99ZD of the Child Protection Act 1999 – whether disclosure would result in undue interference with the privacy of a person.

APPEARANCES and REPRESENTATION (if any):

The application was heard on the papers in the absence of the parties

REASONS FOR DECISION

1. On 28 April 2010 LBJ lodged in the Tribunal an application for review of a decision of the Department of Communities (Child Safety Services) (the respondent) made on 3 April 2009 as to the placement of a child, FJ.  On 20 August 2010 the Tribunal ordered CP, the kinship carer of FJ, be joined as a party in the review. 

2. A compulsory conference will take place in the review on 1 November 2010.  The respondent lodged an updated information statement on 26 October 2010 for use in the proceedings and made a request that a confidentiality order be made in relation to a number of exhibits attached to the updated information statement.  The respondent sought to prevent disclosure of certain specified documents to CP.

3. The respondent relied on section 99ZD(3)(c) of the Child Protection Act 1999 in seeking a confidentiality order from the Tribunal.  It was submitted that the documents sought to be covered by a confidentiality order would not ordinarily be provided to CP in her capacity as a kinship carer.  Disclosure of the documents only arose due to CP being added as a party in the review.

4. The respondent submitted that disclosure of the documents would lead to an undue interference with the privacy of FJ, of LBJ and of FJ’s mother as the documents are detailed assessments of FJ’s family of origin, including persons not party to the current Tribunal proceedings. It was submitted that a confidentiality order should be made to maintain the confidentiality of the material as required under sections 186, 187 and 188 of the Child Protection Act 1999. 

5. Section 99ZD(4) of the Child Protection Act 1999 provides:  The tribunal may make a confidentiality order only if it is satisfied that if it does not do so—

(a) a child is likely to be harmed; or

(b) the safety of another person is likely to be endangered; or

(c) there would be undue interference with the privacy of a child or another person.

1. A perusal of the documents sought to be covered by the confidentiality order reveals a frank assessment of FJ’s parents and of other family members.  One document is a report containing detailed analysis of all departmental involvement with FJ’s mother and father and was stated to have been  primarily sourced to assist in decision-making as to what the ongoing departmental intervention should be for the family where there are children in the high risk 0 to 4 year age group.

2. Another document is a psychological assessment of FJ’s father which had been prepared in the child protection proceedings. The final document was a social assessment report of the family commissioned in the child protection proceedings. 

3. The respondent is under an obligation in section 21 of the Queensland Civil and Administrative Tribunal Act 2009 to use its best endeavours to help the Tribunal make its decision in a review application.  That obligation includes providing to the Tribunal any document in the respondent’s possession that may be relevant to the Tribunal’s review of the decision.

4. It is quite apparent that the documents in question contain information that is inherently private about FJ, LBJ and FJ’s mother.  However the documents arise from FJ being in the care of the respondent and being the subject of decisions by the respondent.  The documents have been provided to the Tribunal only because LBJ commenced a review of a decision made by the respondent about his daughter. 

10. In the preliminary view of the Tribunal the documents are directly relevant to the issues to be determined by the Tribunal in this review.  If the documents were not thought to be relevant to the review, the respondent would not lodge the documents with the Tribunal and would not be seeking to rely on them as part of the response to the review of the respondent’s placement decision being sought by LBJ. 

11. The Tribunal must observe the rules of natural justice in conducting its proceedings.  The Tribunal is under an obligation to take all reasonable steps to ensure each party to a proceeding understands the nature of assertions made in the proceedings.  The Tribunal must ensure as far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.

12. The Tribunal considers that it is essential to the discharge of its statutory obligations that all parties to the review are aware of relevant information provided in the review to the Tribunal and have an opportunity to address the Tribunal about that information before a decision in the review is made. Nevertheless a party could be prevented from having such an opportunity if the law requires the Tribunal to prevent information being disclosed to a party. The respondent has submitted that section 99ZD(4)(c) of the Child Protection Act 1999 provides that requirement in this case.   

13. The Child Protection Act 1999 also provides that that Act must be administered under the principle that the welfare and best interests of a child are paramount.  Applying that principle in this case leads to an examination of the need to avoid undue interference in the privacy of FJ and her family and the need to ensure that the Tribunal is in a position to produce the correct and preferable decision in the review by discharging its statutory obligations.  The Tribunal is confidant that the two needs are not in opposition in this case and can be reconciled. 

14. One consequence of the Tribunal being involved in decision making about FJ is the interference with the privacy of FJ and her family.  However, the Tribunal exercises the functions of the original decision maker in the review and must have access to the information that is available to the decision maker and relevant to the decision being reviewed. The interference to the privacy of the parties is unavoidable if the review commenced by LBJ is to proceed to completion. The question is whether that inference is an undue interference if the documents in question are disclosed to CP. 

15. The Tribunal considers that disclosure of the specified documents will not result in undue interference in the privacy of FJ and her family. CP has a legitimate interest in the information contained in those documents as a party in the review proceedings. She is under a statutory obligation imposed by section 187 of the Child Protection Act 1999 not to disclose the information to anyone else. That obligation provides adequate protection to the privacy of FJ and her family against the misuse of the information contained in the documents in question.  

16. It is the view of the Tribunal that the welfare and best interests of FJ require the Tribunal to provide all parties with an equal opportunity to address the issues involved in this review. That position can best be achieved by all relevant information being available to the parties.

17. The best interests of FJ require nothing less than the Tribunal being able to make the correct and preferable decision about her care and such an outcome is dependent on the Tribunal having access to all the relevant facts including the views of CP about the information obtained by the respondent about FJ’s family.     

18. The Tribunal refuses the request to make a confidentiality order under section 99ZD of the Child Protection Act 1999 which would prevent the disclosure of the documents specified by the respondent to CP.