Mrs O and Mr O v Department of Child Safety, Seniors and Disability Services - [2023] QCAT 339

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mrs O and Mr O v Department of Child Safety, Seniors and Disability Services [2023] QCAT 339

PARTIES:

MRS O AND MR O

(applicants)

v

DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES

(respondent)

APPLICATION NO/S:

CML245-23

MATTER TYPE:

Childrens matters

DELIVERED ON:

29 August 2023

HEARING DATE:

9 August 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman
Member Pinkerton
Member Armitage

ORDERS:

Unless otherwise ordered, the decision made on 11 July 2023 by the Respondent to remove H from the care of the Applicants is stayed until the review has been determined.

CATCHWORDS:

CHILD PROTECTION – application for a stay of a decision – definition of kin – where removal decision stayed pending final determination of application

Child Protection Act 1999 (Qld), Chapter 1, Part 2, s 247

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 (3)

Human Rights Act 2019 (Qld), s 8, s 13, s 15, s 25, s 26, s 28, s 31, s 58

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented, supported by Mr Hemsley of Queensland Foster and Kinship Care

Respondent:

Ms Larkin, decision maker

Ms Geddes, Court Services Adviser

REASONS FOR DECISION

Mr and Mrs O have been kinship carers for a child (H), who was born in December 2021, and is now some 20 months old. H is subject to a child protection order granting guardianship to the Chief Executive until 18 July 2024. As this is a short term order, the Department are required to work towards reunification of H into his mother’s care.
Mrs O was previously a friend of H’s mother, and H was placed with Mr and Mrs O when he was two weeks old under a kinship care arrangement. The relationship between Mrs O and H’s mother broke down when he was approximately 5 months of age.
H’s mother had another baby in April 2023. That baby has been placed with experienced general foster carers after H’s mother indicated that Mr and Mrs O were not considered kin to the baby.
H’s mother has three older children who reside with their father (who is not H’s father).
On 11 July 2023, Mr and Mrs O were advised that H would be placed with the general foster carers with his baby sister. He was moved on 16 July 2023.
On 18 July 2023, Mr and Mrs O lodged an application with the Tribunal. The Tribunal is only able to review decisions when applications are lodged by an “aggrieved person”.[1] Mr and Mrs O are not aggrieved persons as that term is defined. Accordingly, they sought permission to lodge an application for review on behalf of H.
[1]s 247 Child Protection Act 1999 (Qld) ("CPA").
On 20 July 2023, the President of the Tribunal granted permission for the application to be filed on behalf of the child.[2]
[2]s 99P CPA.
On 9 August 2023, the Tribunal stayed the operation of the Department’s decision until the review application is determined. These are the reasons for that decision.
PRELIMINARY ISSUES
It is noted that H’s mother has identified that his father is Aboriginal. The identified person has refused to take part in paternity testing, and advised the Department that he does not want parenting responsibilities and does not wish to be contacted by the Department.
The Department submitted that Mr and Mrs O could not be considered “kin” to H following recent changes to the definition of kin in the Child Protection Act 1999 (Qld). “Kin” is defined in Schedule 3 of the Act to include a person who is recognised by the child, or the child’s family group, as a person of significance to the child.
The Department advised the Tribunal that H’s mother had indicated that she did not regard Mrs O as kin, and that it was the view of the department that H’s mother had the authority to determine the people who H recognises as a person of significance to him. The department submitted, therefore, that Mr and Mrs O cannot be issued with approval as kinship carers. Mr and Mrs O submit that they are recognised by H as persons of significance to him, and so fall within the definition of kin.
We were not called upon to determine the issue of whether Mr and Mrs O are kin to H. They are currently undergoing an assessment process to determine whether they should be issued with an approval certificate. If the Department refuse to issue an approval, Mr and Mrs O will have review rights at the Tribunal. We note that this issue may need to be determined prior to the final hearing in this matter.
We consider that Mr and Mrs O may fall within the definition of kin and so H may be able to remain in their care under the appropriate approval. Alternatively, we note that they have applied for approval as general foster carers and H may be able to remain in their care on that basis if the application is successful.

CONSIDERATION OF THE STAY APPLICATION

A stay is a temporary order of the Tribunal which would return arrangements to those in place prior to the decision of 11 July 2023. In this case, that would mean that H would return to the care of Mr and Mrs O until the final hearing of the application, or until further order of the Tribunal.
RELEVANT LEGISLATIVE PROVISIONS
The Child Protection Act 1999 (Qld) sets out the purpose of the Act and principles for its administration.[3] It is unnecessary to restate the provisions in full in this decision. In summary, the Act provides that:
[3]Chapter 1, Part 2, CPA.
(a)The purpose of the Act is to provide for the protection and promote the safety of children and, to the extent that it is appropriate, to support families caring for children.
(b)The main principle for administering this Act is that the safety, wellbeing and best interests of a child, both through childhood and for the rest of the child’s life, are paramount. This is referred to as the paramount principle.
(c)Other principles relevant to making decisions relating to the safety, wellbeing and best interests of a child include:
(i)      a child has a right to be protected from harm or risk of harm;
(ii)      if a child does not have a parent able and willing to give the child ongoing protection in the foreseeable future, the child should have long-term alternative care;
(iii)     if a child is removed from the child’s family, consideration should be given to placing the child, as a first option, in the care of kin;
(iv)     if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible;
(v)      a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child (including a parent or other person with capacity to care for the child with assistance or support);
(vi)     a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child;
(vii)   a delay in making a decision in relation to a child should be avoided, unless appropriate for the child;
(viii)     the action or order that should be preferred is the action or order that best ensures the child experiences or has—
·     ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and
·     stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs…
Example— living arrangements that provide for a stable and continuous schooling environment
We have taken the above principles into account in making the decision.
On 7 August 2023, the Department provided a Statement of Reasons signed by the manager of the relevant child safety service centre. The Department says in the document, and in oral evidence provided at the hearing:
(a)Since 9 June 2023, the general foster carers had been providing fortnightly weekend respite care to H (prior to the move, that amounted to two weekend visits). They also interacted with him during contact handover times. This satisfied the Department that H had an “established relationship” with the carers;
(b)Having H residing with his sister assists with arranging the frequent family visits which occur each week while the Department attempts to reunify the children with their mother. He currently has twice weekly visits with his mother which are supervised by the Department;
(c)H’s mother no longer recognises Mr and Mrs O as significant others to her or her children. As noted above, the Department has taken the view that H’s mother is able to determine and advise the Department which persons are significant to H;
(d)Having the siblings living together will support the growth of their sibling bond and relationship permanency and stability now and in the future. “We need to ensure that children grow up with their siblings and be placed together”.
(e)No contact had been arranged between Mr and Mrs O and H since he had been removed from their care. In the statement of reasons, the Department indicate that such contact may cause H to become anxious and confused. At the hearing the Department indicated that future contact was “not off the table”.
(f)H attends day care 3 – 4 days per week in his current placement. The day care centre report that he has settled in well and has not displayed any erratic behaviour. He is well settled in his new placement and continues to be a happy and active toddler.
(g)There has been one Standards of Care review while H was in the care of Mr and Mrs O. In May 2023, Mr and Mrs O were advised that a finding had been made that they had not met the required standards of care because:
(i)      Mrs O expressed disproportionate worries about H being harmed or neglected during family time, and found it challenging to support family time and reunification. For example, she “consistently’ reported H not having sufficient food or water during contact;
(ii)      Mr O had on one occasion refused to hand H over to the worker who was facilitating family contact;
(iii)     A communication book was until recently used in a “negative and blaming way”; and
(iv)     A dietician had highlighted that H was overweight and “action needs to be taken”.
(h)Following the finding, Mrs O completed reunification training and a Triple P parenting program.
(i)Placement with the general approved foster carers meets H’s physical, emotional and family connection needs and provides H with the opportunity to grow and develop in a family environment with his sister, building a sibling attachment and relationship.
(j)H has settled well with his carers and is happy and content.
(k)H requires consistent safe and predictable care and family connection, which he is afforded when placed with the generally approved carers where he is “emotionally and physically supported to grow and develop to his full potential”. The placement provides him with a sense of security where he is supported to have contact with his mother through the reunification process while also providing him with a sense of family and belonging through his foster family.
Mr and Mrs O challenge some of the information relied upon by the Department. In particular:
(a)They provided a copy of a letter from a dietician dated 30 May 2022 confirming that H’s weight gain was not a concern, and that his current feeding schedule was age and weight appropriate.
(b)They say that they were contacted by the Child Protection Investigation Unit after H was badly sunburned while in the care of his mother, and took him to the police station to have photos taken of his burns after being advised to do so. They have not overreported concerns, but have followed advice in terms of reporting incidents responsibly.
(c)They have not undermined family contact and support the reunification process.
(d)The communication book was not used in a negative or blaming way.
The Tribunal may make an order staying the operation of a reviewable decision only if it considers the order is desirable[4] after having regard to the following:
(a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
(b)any submission made to the tribunal by the decision-maker for the reviewable decision;
(c)the public interest.
[4]s 22(3) QCAT Act 2000.
H has a number of interests that must be considered. He has lived with Mr and Mrs O since he was two weeks old, and has a long term relationship with them.
H has an interest in maintaining a relationship with family members if it is safe and in his best interests to do so. Mr and Mrs O provided evidence that they are committed to supporting an ongoing relationship between H and his four siblings, mother and grandmother. We note that contact has been occurring regularly while H has lived with Mr and Mrs O. The Department raise concerns that Mr and Mrs O do not genuinely support and encourage those relationships.
The general foster carers are experienced carers who have a good understanding of the reunification process.
Children must be cared for in a way that promotes their safety and long term interests. The Tribunal notes that further assessments are to be undertaken to assess the suitability of the applicants to be approved to care for H. If a stay is granted and H is returned to the applicants, an assessment that they are not suitable to be approved would necessitate a further move for H. On the other hand, no guarantees can be made that the placement with the general foster carers will be viable over the long term. It may be that H is reunified to the care of his mother, another suitable family member becomes available to care for H, or the general foster carers become unavailable.
The applicants’ interests have been considered. They have an established long term relationship with H. Their prospects of success at the ultimate hearing of this matter may be reduced if he spends significant time out of their care prior to the hearing.
The department has statutory obligations to protect H, and to ensure that he is provided with a satisfactory level of care. The Department says that keeping H in his current placement is the best way to comply with its obligations.
The Department submitted that:
(a)H had been in his new placement for three weeks and had settled in well. All his physical, emotional, and family connection needs were met.
(b)He had commenced at a new day care centre.
(c)Any disruption to his placement would not give him the opportunity to strengthen and enhance these new relationships creating stability and security.
(d)Moving H would disrupt his developing attachment and bond to his sister.
(e)The current carers support family contact and reunification which was “not as forthcoming” from Mr and Mrs O.
(f)The concerns about H’s behaviour previously reported by Mrs O have not been reported in the current placement.
(g)If Mr and Mrs O are not approved through the kinship or general foster care approval process, H will be unable to remain in their care long term. If a stay is granted and this was to occur, H would be at risk of experiencing further disruption and instability, impacting on his emotional wellbeing, disrupted attachment with his sibling and overall sense of belonging.
In addition to these factors, the Tribunal must also consider the usual legal principles which guide whether a stay should be granted. This involves considering whether there is an arguable case on review, and balancing the identified risks. We must consider also whether refusal of the application would render the review proceedings futile - whether the stay is necessary to enable the effective exercise of the Tribunal’s jurisdiction.
Without making a finding on the likely final outcome of the review, the Tribunal is satisfied that the applicants’ case is an arguable one.
We have balanced the identified risks and the public interest. There is a clear public interest in having children cared for safely. The Child Protection Act compels us to consider the best interests of H. We have considered whether the risks to him are less if the stay is granted than if it is not.
There is insufficient evidence for the Tribunal to find that Mr and Mrs O are overreporting issues of concern. That is a matter that may be explored further at the hearing. We do not consider any such concern raises any risk to H in the short term.
The Department was unable to produce evidence of inappropriate entries in the communication book. If they exist, that is a matter that can be explored at the final hearing of this application.
Mr and Mrs O say that they support reunification and H having an ongoing relationship with his siblings, mother and other family members. They have recently undertaken training surrounding their role as carers and say that they understand that their role is to provide care until reunification (if possible), and to support H’s transition back to the care of a parent.
We note that there has been regular contact between H and his family members while he has been living with Mr and Mrs O. This includes seeing his sister for extended periods when staying with their grandmother on weekends. Mr and Mrs O live in the same or neighbouring suburbs to H’s mother and grandmother, significantly reducing travel time during contact visits.
Mr and Mrs O have a long established relationship with H. If returned to their care, he would be able to return to his familiar day care centre and resume his relationship with treating medical professionals.
While the Department is supporting and working towards reunification, H’s mother has recently had another child removed from her care and has a history of poor mental health and drug use. She is currently supported by support workers funded by the NDIS during contact. There is no certainty that reunification will be successful.
There seems to be some confusion around day care arrangements for H. At the hearing, Mr and Mrs O indicated that they would be happy to make arrangements for H to attend day care more regularly so that he has the opportunity to play and form relationships with other children around his own age.
The evidence is that H has developed into a healthy and happy toddler under the care of Mr and Mrs O. They are able to provide a familiar and stable environment for H pending the determination of this application.
Taking these factors into account, we are satisfied that an order staying the operation of the Department’s decision is desirable as that term is used in s 22 of the QCAT Act. Accordingly, the order will be made.
In making this decision, we have given proper consideration to relevant human rights under the Human Rights Act 2019 (Qld) (“HRA”). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.[5]
[5]s 58 HRA.
A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the Act[6], and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
[6]s 8, s 13 HRA.
To give proper consideration to a human right, we must identify the human rights that may be affected by this process and decision, and consider whether our decision would be compatible with human rights.[7]
[7]s 58(5) HRA
We consider the following human rights are potentially impacted through this process and by this decision:
(a)s 15 – right to recognition and equality before the law
(b)s 25 – privacy and reputation
(c)s 26 – protection of families and children
(d)s 31 – fair hearing

We are satisfied that the rights of the parties to a fair hearing have not been limited. The application has been determined by a competent, impartial and independent tribunal after a fair hearing. The proceedings are conducted in private as required by the Child Protection Act. The parties are being advised of the reasons for the decision. Accordingly, the process and decision are compatible with the parties’ human rights.[8]
[8]s 8 HRA.
Further, we are satisfied that this decision is compatible with human rights as any limitation on human rights is only to the extent that is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Given the matters we have taken into account, discussed earlier in our decision, we consider any limitation reasonable and justifiable. [9]
[9]See factors in S 13 (2) HRA
In any event, we have taken into account that the Child Protection Act states that the main principle for administering the Act is that the safety, wellbeing and best interest of a child … are paramount.[10]
[10]S 5A CPA
The Tribunal may make a decision not compatible with human rights if we could not reasonably have made a different decision because of a statutory provision.[11] In the event that this decision impacts on human rights, we are satisfied that we are able to lawfully make this decision because the Child Protection Act compels us to administer the Act on the basis that the safety, wellbeing and best interest of a child … are paramount. We have made this decision on that basis.
[11]s 58 (2) HRA.
This decision is compatible with human rights.