MCK v Department of Child Safety, Seniors and Disability Services - [2023] QCAT 276

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MCK v Department of Child Safety, Seniors and Disability Services [2023] QCAT 276

PARTIES:

MCK

(applicant)

v

DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES

(respondent)

APPLICATION NO/S:

CML199-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

10 July 2023

HEARING DATE:

13 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The application for miscellaneous matters filed by the respondent on 12 June 2023 is dismissed.

CATCHWORDS:

CHILD PROTECTION – application for directions vacating the hearing of an application to stay the operation of a decision and vacating a compulsory conference – where application refused

Child Protection Act 1999 (Qld) Chapter 1, Part 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 21, s 22, s 69

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

BACKGROUND

MCK was the foster carer of two children B, who is almost 7 years old, and J, aged 6. By letter dated 8 June 2023, MCK was advised that the children were to be removed from her care the following day, and placed with kinship carers in another town.
On 8 June 2023, MCK lodged an application in this Tribunal seeking review of the Department’s decision. The application included (and also attached) an application for the operation of the decision to be stayed pending the review.
On 8 June 2023, the Tribunal provided an information notice to the Department, attaching a copy of the applications.
On 9 June 2023, the Tribunal directed the parties to attend a stay hearing on 16 June 2023, and a compulsory conference in relation to the review application on the same date.
On 12 June 2023, the Department lodged an application for miscellaneous matters seeking directions:
(a)Vacating the directions of 9 June 2023; and
(b)Listing the matter for a stay hearing and compulsory conference not before 12 July 2023.
The Department indicated in its application that:
(a)The Child Safety Officer had spoken to the children on 12 June 2023 regarding their views and wishes on how they wished to participate in the review proceedings;
(b)B indicated that she would like to participate through a child advocate;
(c)An urgent referral was made to the Office of the Public Guardian; and
(d)The Public Guardian advised that they required four weeks to “progress the referral for B” and were supportive of an application seeking to vacate the stay hearing and compulsory conference.
The Department referred the Tribunal to s 5E of the Child Protection Act 1999, stating “The Department are seeking the Tribunal to vacate the listed proceeding in order to provide the child with an opportunity to participate given a significant decision will be made about her which is in line with section 5E of the Act. Given the Tribunal’s jurisdiction is enlivened by the enabling Act, the Tribunal also need to provide the child an opportunity to participate in decision making”.
On 13 June 2023, I dismissed the Department’s application. The Department has sought reasons for my decision. I note that the decision issued on 13 June 2023 erroneously referred to the Department’s application being filed on 13 June 2023. This was due to an administrative error. These reasons contain the correct date of 12 June 2023.

RELEVANT LEGISLATIVE PROVISIONS

The Tribunal is exercising its review jurisdiction, conferred by the Child Protection Act 1999 (Qld) (‘CPA’).[1] The CPA sets out the purpose of the Act, and principles for its administration.[2] In summary, the purpose of the Act is to provide for the protection of children, to promote the safety of children, and, to the extent that it is appropriate, to support families caring for children. The paramount principle and the other general principles are described.[3] It is unnecessary to restate them in full here, but those principles guide decisions made under the CPA.
[1]S 17 Queensland Civil and Administrative Tribunal Act Qld (2009).
[2]Chapter 1, Part 2 Child Protection Act Qld (1999).
[3]Chapter 1, Part 2 CP Act.
Given that the Department has referred specifically to s 5E, I have included that section in this decision. It states:
5E Principles for participation of children
(1) This section applies if a person—
(a) exercises, or will exercise, a power under this Act that affects, or may affect, a child; or
(b) makes, or will make, a decision under this Act that affects, or may affect, a child.
(2) Unless a provision of this Act states otherwise, the person must ensure the following in relation to the exercise of the power or the making of the decision—
(a) the child is given meaningful and ongoing opportunities to participate;
(b) the child is allowed to decide whether or not the child will participate;
(c) the child is given information that is reasonably necessary to allow the child to participate;
(d) the child is advised about what help is available to the child;
(e) the person understands and considers, or makes a genuine attempt to understand and consider, any views expressed by the child;
(f) the child is allowed to express views that are different to views previously expressed by the child;
(g) communication with the child is carried out in a way that is appropriate for the child;
(h) a record of views expressed by the child is made that, if appropriate, uses the child’s words.
(3) If the child decides to participate in the exercise of the power or the making of the decision, the person must ensure that—
(a) the child is allowed to decide how the child will participate; and
Examples of how a child may decide to participate—
•communicating verbally or non-verbally
•communicating directly with a particular person
•communicating indirectly through a trusted person, including, for example, a member of the child’s family or family group, the child’s carer or the public guardian
•communicating indirectly through an independent person, including, for example, the child’s legal representative or health practitioner
•communicating indirectly through a written statement or an audio or video recording
•communicating indirectly through an expert in a report prepared by the expert
•participating separately from particular persons
(b) the person listens to and engages with, or makes a genuine attempt to listen to and engage with, the child; and
(c) the child is given help to participate if the child requires it.
(4) If the child decides not to participate, or is otherwise unable to participate, in the exercise of the power or the making of the decision, the person must ensure—
(a) the person obtains, or makes a genuine attempt to obtain, the views of the child in another way that is appropriate for the child; and
Example of a way to obtain a child’s views that may be appropriate—
a report prepared by a psychologist for the child
(b) the child’s decision, or inability, does not operate to the detriment of the child in relation to the exercise of the power or the making of the decision.
(5) This section does not apply to a court or the tribunal.
Section 5E imposes significant obligations upon decision makers regarding the participation of children in decision making. It does not apply to the Tribunal.
The decision maker (the respondent) must use its best endeavours to help the Tribunal so that it can make its decision on the review.[4] The purpose of the review is to produce the correct and preferable decision, and the review must be heard and determined by way of a fresh hearing on the merits.[5]
[4]S 21 (1) QCAT Act.
[5]S 20 QCAT Act.
The Tribunal may stay the operation of a reviewable decision or part of a reviewable decision if a proceeding for the review of the decision has started under the QCAT Act.[6] Considerations relevant to the granting of a stay of operation of a decision are set out in the Act, and include “the interests of any person whose interests may be affected by the making of the order or the order not being made”.[7]
[6]S 22 QCAT Act.
[7]S 22 (4) QCAT Act.
Staying the operation of the decision essentially preserves the status quo until the review is finalised.
At the time of my decision, the material before me was limited to the application lodged by the applicant, the decision letter of 8 June 2023, and a copy of an email dated 8 June 2023 from the Department to MCK and others. The email confirms that the children would be moving placements the following day. The children were to be advised on 8 June 2023 about the decision, which was described as “an adult decision that Child Safety has made”. The following day, employees of the Department were to meet again with the children and “focus on acknowledging the children’s feelings and ensure that the children feel validated and heard”.
At the time of my decision on 13 June, the applicant continued to hold the requisite approvals, and there was no evidence that the children were unable to return to her care.
The Department made its decision on the basis of the evidence available to it at the time. Similarly, the Tribunal would be required to consider the application based on the evidence available to it at the time of the stay hearing.
The Department has referred the Tribunal to s 5E of the Act. It seems the reference amounts to a submission that s 5E prevents the Tribunal from conducting a proceeding without a child advocate being appointed. That submission is rejected. Clearly, s 5E does not apply to the Tribunal. It does seem to apply to the Department. I would expect that information gathered by the Department in compliance with s 5E would be available to the Tribunal when conducting the stay hearing.
In conducting Tribunal proceedings, the views and wishes of children are relevant but not determinative. The weight attached to those views will depend on any number of factors including the circumstances in which they are gathered, the age of the children, any vulnerabilities and disabilities affecting the children, and whether the children’s safety and best interests are promoted if a decision is made in line with their expressed views and wishes. The Tribunal must balance this information with the purposes of the Act, and the principles set out for its administration[8].
[8] CPA Chapter 1, Part 2
A child has the right to express his or her views to the Tribunal about matters relevant to the review[9]. Noting the delays in the appointment of a child advocate, if the proceedings were conducted on 16 June 2023, the Tribunal would be compelled to rely on other evidence to ascertain the childrens’ views. In particular, the Tribunal would need to rely on evidence provided by the parties if no independent evidence was available from, for example, the community visitor. It would be a matter for the Tribunal panel conducting the proceeding as to whether they considered that information sufficient to reach a decision on the day.
[9] S 99U CPA
I note that the Department is required under the legislation to use its best endeavours to help the Tribunal, and so I would expect that all relevant available material would be before the Tribunal when it came to consider the application for a stay. That would include providing the Tribunal with an explanation for the decision, and evidence gathered in compliance with s 5E. Apart from this general obligation, the Department is obliged to provide to the Tribunal within a reasonable period of not more than 28 days after the decision maker is given a copy of the application for review a written statement of reasons, and any relevant documents or things in its possession or control.
A delay in conducting a stay hearing diminishes the utility and procedural fairness of the stay process. It opens opportunities for the Tribunal to be presented with submissions that a new status quo has been established. Most importantly, a delay in listing proceedings increases uncertainty for these young children. Given the urgency in listing the matter for a stay, it was considered that a week was a reasonable period in which the Department could provide the Tribunal with a statement of reasons and any other relevant documents, and otherwise comply with its statutory obligations.
It may have been that the Tribunal panel was unable to make a decision on the stay application on 16 June. It may have been that the application was dismissed on the day or adjourned with appropriate directions to be finalised on another day. If a stay were to be granted, the Tribunal was able to impose conditions on the order or provide for the lifting of the order if stated circumstances occurred. Further, the Tribunal would be able to reconsider any stay order made upon application of the parties if circumstances changed. These were matters to be properly considered by the Tribunal constituted for the proceeding. The possibility of any of these outcomes occurring was not a reason to delay the hearing.
The application to vacate the hearing of the stay application was refused.
The matter had been set down for a compulsory conference on 16 June 2023. The QCAT Act sets out the purposes of compulsory conferences.[10] They include identifying and clarifying the issues in dispute and making orders and giving directions about the conduct of the proceeding. The Department’s submissions did not articulate why the compulsory conference process was not appropriate. Accordingly, I dismissed the application so far as it related to vacating the compulsory conference.
[10]S 69 QCAT Act.