PM v Commission for Children and Young People and Child Guardian
[2012] QCAT 456
•21 September 2012
| CITATION: | PM v Commission for Children and Young People and Child Guardian [2012] QCAT456 |
| PARTIES: | PM |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML178-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 26 March and 13 July 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julie Ford, Presiding Member Pam Goodman, Member |
| DELIVERED ON: | 21 September 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian made on the 9 September 2011 to issue a negative notice and refuse the blue card application of PM is confirmed. 2. The Tribunal prohibits the publication of the names of PM, her former long term partner, her children, and of witnesses in this matter. |
| CATCHWORDS: | CHILDRENS – BLUE CARD – where applicant has a criminal history – where applicant’s children removed from her care – where applicant has undertaken long term counselling – whether an exceptional case exists – whether protective factors outweigh risk factors – whether non-publication order appropriate Commission for Children and Young People and Child Guardian Act 2000, ss 5, 6, 155, 221, 226, Schedule 2 CCYPCG v Lister (No 2) [ 2011] QCATA 87 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | PM represented herself, supported by HL |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Adele Noble |
REASONS FOR DECISION
PM is currently studying counselling and volunteers for a number of organisations. She has applied for a blue card so that she is able to continue with both her studies and her volunteer work.
The Commissioner for Children, Young People and Child Guardian decided not to issue PM with a blue card and instead issued her with a negative notice. PM seeks a review of that decision.
What factors are relevant when considering granting a blue card?
The focus of the CCYPCG Act is the protection of children and promotion of their rights, interests and well-being: their welfare and best interests are paramount.[1] Chapter 8 of the CCYPCG Act sets out provisions relating to employment screening (blue cards). The paramount consideration for making employment screening decisions under the CCYPCG Act is the protection of children from harm and promotion of their wellbeing.[2]
[1] CCYPCG Act, ss 5, 6.
[2] CCYPCG Act, s 155.
A police criminal history check had revealed that PM was convicted of criminal offences in 2008. The offences were not “serious offences” as defined in the CCYPCG Act.[3]
[3] CCYPCG Act, schedule 2.
Section 221 applies when a person has been convicted of an offence other than a serious offence. Section 221 provides, among other things, that the Commissioner (and now the Tribunal) must issue a positive notice unless she is satisfied it is an exceptional case in which it would not be in the best interests of children to issue a positive notice. If so satisfied, the Commissioner must issue a negative notice to the person.[4] A positive notice will result in the person being issued with a blue card and a negative notice means that the person will not receive a blue card.
[4] CCYPCG Act, s 221(2).
The CCYPCG Act does not define the term ‘exceptional case.’ It is well established that determining whether an exceptional case exists is a matter of discretion having regard to the merits of the individual case.[5] When reviewing the Commissioner’s decision, the Tribunal must have regard to the factors set out in section 226 of the CCYPCG Act. Those factors include when the offence was committed, the nature of the offence and its relevance to employment that involves children, the penalty imposed by the court and anything else relating to the commission of the offence that the Commissioner reasonably considered to be relevant to the assessment of the person.
[5]CCYPCG v Lister (No 2) [2011] QCATA 87; CCYPCG v FCG [2011] QCATA 291; Kent v Wilson [2000] VSC 98 [paragraph 22], Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders.
Section 226 is not an exhaustive list of the matters that may be taken into account. Other factors may be relevant to determining whether a case is an exceptional case.[6]
[6] CCYPCG v Lister (No 2) [2011] QCATA 87, [16-17].
PM’s Criminal History
PM has a criminal history from 1987-2000. She has been convicted of unlawfully taking shop goods away, receiving, false pretences; possessing utensils or pipes etc (X2).
There is no evidence that PM has been charged with any other criminal offences either before or after that period. The Commissioner did not pursue an argument that PM’s prior criminal convictions impact on her current application for a blue card.
Other evidence
PM gave evidence that she had experienced a childhood characterised by severe verbal and physical abuse within her home. As a young woman she was raped. In her early 20s she entered into a relationship with ST which lasted approximately 8 years. During their relationship she was subjected to extreme and intense physical, verbal and sexual abuse. PM was punched, kicked, knocked unconscious, raped, and forced to engage in sexual relations with associates of her then partner. She suffered many fractured bones and states that she has an acquired brain injury as a result of the abuse she was subjected to. PM recounted many traumatic experiences from her life, including the stillbirth of two children.
PM gave evidence that when she was hospitalised due to domestic violence during her relationship with ST, she allowed her son to be placed into temporary care to protect him from her former partner. He was returned to her care during a period she was not living with ST.
PM subsequently reconciled with ST and he became increasingly abusive and controlling. PM states that she was unable to escape from his abuse and feels that she was not offered sufficient support to enable her to safely leave what was a violent and dangerous home. PM states that her actions during the relationship were in the context of an extremely violent relationship and were motivated by the need to protect her life, and the lives of the children.
PM confirmed that her two children witnessed the abuse occurring in the home. There is evidence that the children were physically abused in the home. PM states that in 1999, shortly before her relationship with her former partner ended, she was severely beaten and physically unable to escape from the home. At that time, and under threat from her former partner, she performed oral sex on her 8 year old son, and he on her. Her son recorded and watched pornographic video recordings at around that time. Shortly after, her former partner hit her on the head and raped her and left her at a hospital. Her children were placed in care and have not been returned to live with her. PM has had limited contact with her children since they left her care.
PM states that her former partner was named a serious violent offender and jailed for 16 years. It is likely that he will be released on parole this year.
PM states that she received indemnity from prosecution on criminal charges related to the abuse of her son as she gave evidence against her former partner.
PM has changed her name and undergone some 12 years of counselling and has undertaken her own studies in counselling. She states that as a result of the abuse which she has been subject to, she is now wheelchair bound and suffers from the effects of post traumatic stress disorder and adjustment disorder with anxious moods.
Medical and other evidence relating to PM’s mental health
PM produced a letter from a psychiatrist dated 19 May 2012 confirming that she continues to suffer from post traumatic stress disorder.
ME, PM’s former long term counsellor provided evidence that PM had displayed commitment to her counselling issues, addressed many issues and shown significant personal growth, and demonstrated notable changes in her behaviour and relationships with others. ME stated that PM has confronted significant issues though counselling including intense feelings of helplessness and powerlessness over being unable to protect her children from abuse, and over her own forced abuse of her son. ME states “I expect that PM will continue working through such traumatic issues for a very long time”.
ME states that she is not qualified to assess the likelihood of PM regressing to previous behaviours but has no reason to believe that she would.
LP, who has a Masters of Social Ecology, a degree in social science/social welfare and two associate diplomas, gave evidence. LP has previously worked in child safety and disability services. LP states that PM has faced many challenges in her life and that “one of these situations in particular occurred over 10 years ago and this situation and outcomes, for PM, have had an ongoing and significant impact on her life and functioning.” LP offers her support for PM’s application for a blue card and notes her amazing tenacity, resilience and hard work to beat the odds. She believes that PM will act proactively in the best interests of children.
On 5 November 1999, BS, a social worker from the Child and Adolescent Forensic Unit at Queensland Health prepared a report for the Brisbane Children’s Court. The social worker reports that PM had at the time reported that the sexual abuse of her son had started at the beginning of the year. The report writer refers to the “coercive, systematic and serious abuse” of PM’s son by both PM and her former partner. She noted that PM’s and her former partner’s behaviour were indicative of potential future abuse of the children, particularly given that the couple reconcile with “ease”. PM disputes this description – she states that she did not easily reconcile with her former partner, but felt that she had no choice. She hotly denies that she was engaged in the sexual abuse of her son on more than one occasion and recalls that her son videoed sexual activity in the home on one occasion shortly after.
BS states “the level of perversion present in the day to day environment suggests that not only were PM’s former partner’s sexually deviant needs being met, but PM’s were also.” This again is vigorously denied by PM, who states that her actions were forced on her and were motivated by the need to protect her life and her children’s lives.
On 10 September 2002 RM, a consultant psychologist, prepared a report for the Department of Families. RM reports that tests indicated that PM’s general level of cognitive functioning fell within the average range. At that time, PM was socially isolated and was significantly suspicious and hostile in her relations with others. RM concluded that PM’s ability to care for her own children would be compromised primarily by psychological/psychiatric instability rather than by cognitive problems. PM had a high level of emotional distress including symptoms of severe anxiety and depression, emotional lability and reduced emotional control and reported symptoms consistent with post traumatic stress disorder.
RM found that PM’s emotional instability would limit her capacity to cope with the day to day pressures of caring for her children. RM reports that PM presented as egocentric, being heavily focussed on her own problems, and it would therefore be difficult for her to be sensitive to the emotional needs of her children, particularly if this required prioritising their needs above her own. RM found that it was likely PM would have significant problems coping if her children demonstrated challenging behaviours – given her emotional volatility, it is possible that her response may well be characterised by heightened, inappropriate emotion.
There is no current independent evidence as to the extent that PM’s PTSD affects her functioning. PM herself advised that she has constant flashbacks when she imagines that she sees her former partner, particularly around anniversaries. Stressful situations heighten the symptoms. PM states that when she is suffering the symptoms of PTSD she meditates and prays and has tried to meet people from outside of her old life. PM states that when the symptoms are particularly bad she locks herself into her home and can’t get outside the door, and that she snaps easily when she is feeling like that. PM indicated that she would not work as a counsellor when feeling the effects of her PTSD.
In May 2012 PM came face to face with her former partner when he attended the hearing of her application for a protection order against him. At the Tribunal hearing on 13 July 2012 PM advised that she has “gone downhill” since that date and is struggling to leave her house. She stated that she has had a mini stroke and two seizures since the protection order was dealt with in court.
Submissions of the parties
PM submits that a positive notice should be issued. She states that:
§She has worked hard to overcome her traumatic history and feels she has the skills and knowledge to make a significant positive contribution to her community.
§The Commission has placed too much weight on her experiences and behaviour which occurred when she was experiencing a serious violent relationship, and has placed too much weight on her difficult history with the Department of Child Safety.
§Numerous character references attest that she is a fit and proper person to hold a blue care and that she has made significant progress since leaving a serious violent relationship over 12 years ago.
§She is incapable of posing a physical threat to anyone due to the nature of her disabilities.
§There is no evidence of a repetitious cycle or further abusive behaviour on her part since leaving her previous relationship. That is because the behaviour is not part of her general make up.
§She now has the skills, experience and understanding to contribute through counselling to support others experiencing domestic violence. She has measures in place to ensure the safety of herself and any potential counselling clients.
§Her personal distrust of the Department of Child Safety will not impact on her ability to work with the Department on behalf of clients.
§She has the right to contribute to her community in a meaningful way and granting a blue card will acknowledge that right.
§Her PTSD and adjustment disorder with anxious moods do not impact on her suitability for a blue card. Her agoraphobia at times of intense stress means that she manages her conditions in solitude and the condition does not affect others. The conditions leave her hypervigilant and hypersensitive and she is managing these conditions well and would not transfer her feelings to someone else when counselling.
§Her distant relationship with her own children does not reflect adversely on her application.
§After significant counselling and studies, she is a different person and a suitable person to hold a blue card. A blue card should be issued.
The Commissioner submits that:
§PM has not demonstrated an ability to provide care to children and to exhibit protective behaviours towards children in her care. Her own children when in her care were exposed to drug taking, neglect and abuse.
§While in the abusive relationship PM failed to take advantage of the support that was offered to her in order to leave the environment that was dangerous for her and for the children. PM has a difficult relationship with the Department of Child Safety, which is a barrier to her engaging with the Department to act protectively towards children at risk.
§There is no independent professional evidence as to the extent to which PM’s flashbacks and PTSD are being managed. No current report is available which is based on quantitative measuring assessments or psychometric tools.
§PM is undertaking informal counselling in her home with no risk management strategy in place, placing herself and potential clients at risk.
§PM has had limited interactions with children over the last 13 years, and there have been limited opportunities to test PM’s coping skills and behaviour with children. PM has not sufficiently demonstrated the strategies she would use to actively protect children from harm and identify any risks to children.
§The Tribunal should take into account that a positive notice would enable PM to go in any child related field of employment or conduct any child related business regulated by the Act – the blue card is fully transferable.
§Any benefit which might flow to children by having access to PM’s knowledge, experience or flair in working with children is not a relevant consideration.[7]
§Any benefit that may befall PM from engaging in child-related employment is not a relevant consideration.[8]
§The best interests of children are paramount and any question of prejudice or hardship to PM should not influence the decision whether an exceptional case exists.
§As an exceptional case exists, the decision of the Commission to issue a negative notice should be confirmed.
[7]Grinrod v Chief Executive Officer, Department for community Development [2008] WASAT 289.
[8]Grinrod v Chief Executive Officer, Department for community Development [2008] WASAT 289.
Potential risk factors and potential protective factors
As well as PM’s criminal history, the Tribunal must consider other factors to determine if this is an exceptional case. In Commissioner for Children and Young People and Child Guardian v Maher and Anor,[9] the Queensland Court of Appeal endorsed the approach of identifying and balancing potential risk factors and potential protective factors when considering whether an exceptional case exists. Based on the evidence available, the Tribunal identified and examined potential risk factors and potential protective factors in this case.
[9][2004] QCA 492; see also discussion in CCYPCG v Lister (No 2) [2011] QCATA 87, [13].
Potential protective factors identified are:
a)There is no evidence of any ongoing involvement in illicit drug taking or any other ongoing criminal activity, and the Tribunal accepts PM’s evidence that she is no longer at risk of such activity.
b)Criminal activity by PM was some 10 years ago.
c)The abuse of children which PM was engaged in was over 10 years ago, and there is abundant evidence that PM has matured, strengthened and established a strong support network since that time. There is no evidence that PM has been engaged in any abusive or inappropriate relationship with a child since 1999, or that she has failed to protect a child in need.
d)PM has been involved in 12 years of counselling and has undertaken her own studies in counselling so as to better deal with the traumas she has experienced and so that she can help others in her community.
e)PM has established a strong and supportive network of friends and colleagues. She is a highly valued member of her local community where she has demonstrated a high degree of enthusiasm to assist in any way that she can.
f)Referees attest to her personal growth and strength, and commitment to improve herself and her community, and to the appropriateness of her interactions with children and young people.
g)Having experienced dreadful and extreme violence at the hands of her former partner, PM has avoided entering into further long term relationships marked by violence and taken steps to protect and improve her mental health.
h)PM is determined not to renew her relationship with her former partner when he leaves prison and has taken out a protection order to keep him away from her.
i)PM has supportive relationships with friends, colleagues, TAFE teachers and students, co-volunteers and her former employer, many of whom are aware of her history. PM’s witnesses provided oral and written evidence to the Tribunal attesting to PMs good character, self control and suitability for employment with children. PM is described as trustworthy and capable and respectful to others, including towards children.
j)There is evidence that PM has some strategies in place to assist her to cope with stressful events. PM has demonstrated determination and perseverance on her own therapeutic journey, and her long term counsellor supports this application.
k)PM has good insight into the damage which has been caused to her children by being exposed to the violence in their home, being physically abused themselves, and, in the case of her son, being subject to sexual abuse. PM has demonstrated remorse for her role in the damage caused to the children.
l)PM is now physically quite frail and is unlikely to present any real physical threat to the safety of a child.
m)PM has been issued with a yellow card which enables her to work in the disability field. No evidence suggests that she has not acted appropriately in that capacity.
Potential risk factors identified are:
a)PM’s history is of involvement in a long term abusive relationship from which she was unable to remove herself and during which her children were subjected to physical and sexual abuse by her partner and by PM herself. PM’s children were removed from her care and have not been returned.
b)PM continues to experiences the symptoms of post traumatic stress disorder and adjustment disorder with anxious moods, related to the abuse which she was subject to, and the memory of her own involvement in the abuse.
c)PM continues to work through her trauma, and her symptoms (nightmares, agoraphobia, anxiety, depression, flashbacks, becoming snappy) flare up when she is under stress. It is likely that PM will be under considerable stress in the near future, due to the likely release of her former partner from jail, and her ongoing efforts to reengage in a relationship with her children.
d)It is likely that counselling will be a high stress situation. In a counselling environment PM will come into contact with extremely vulnerable young people, and children who are in or have experienced the home environment which she was unable to protect her own children from.
e)The report of the social worker who interviewed PM in 1999 found that PM’s sexually deviant needs were being met in the home.
The Tribunal’s Findings
The Tribunal is satisfied that PM has suffered a great deal of trauma and abuse over her lifetime and it is to her credit that she has committed herself to personal recovery and to making a positive contribution to her community.
The Tribunal accepts that the offences which PM was convicted of do not impact on her current suitability to provide care and protection to children. In the absence of any evidence to the contrary the Tribunal accepts PM’s evidence that she has not used illicit drugs for many years.
PM’s child protection and traumatic personal history raises two concerns for the Tribunal. Firstly, the abuse which her children were subject to while in her care. Secondly, the Tribunal has evidence that PM is living with the effects of her history – she has PTSD and other associated conditions. The Tribunal must consider whether the conditions with which PM has been diagnosed will impact on her suitability to be issued with a positive notice.
The evidence is that PM perpetrated acts of abuse against her children, and failed to remove them from an unsafe environment. The Tribunal accepts that PM was at the time in such a volatile and dangerous situation that she held genuine and reasonable fears for her life, and that this was some 13 years ago.
The Tribunal notes the report of BS who suggests that PM’s sexual needs were being met in the perverse sexual environment in the home. On balance, the Tribunal prefers PM’s evidence and submissions that her needs were not being met but that she was being subjected to terrifying and relentless abuse which left her physically and psychologically weakened and unable to find a way out.
The Tribunal notes that the social work and psychological assessment carried out on PM are not current, and were completed at a time of very high stress for PM and when she had very recently left what could only be described as an horrific home environment. It is noted further that the reports were written for a different purpose than consideration of this application. It remains true, however, that the assessments have been conducted and there is no more recent professional evidence available to contradict the findings of the report authors.
It is a matter of concern to the Tribunal that there has been no current formal assessment of the likelihood of PM regressing into previous behaviours and either harming children or failing to protect children from the harmful behaviour of others. There is no independent professional evidence as to the extent to which PM’s mental health disorders impact on her suitability to work with children.
Is this an exceptional case?
The Tribunal is satisfied that PM’s ongoing psychological conditions continue to impact on her day to day functioning and that PM will, in the words of her former counsellor “continue working through such traumatic issues for a very long time”.
In the absence of current independent medical evidence as to the impacts of her conditions on PM’s behaviour, particularly in periods of high stress, the Tribunal cannot be satisfied, on the balance of probabilities, that it is in the best interests of children for PM to be issued with a blue card.
An exceptional case is established by the evidence of PM’s previous inability to protect her own children from harm; her own abuse of the children; the ongoing psychological effects of being abused throughout her childhood and early adulthood; and the ongoing psychological effects of the knowledge of the damage which her own actions have caused. These factors impact negatively on PM’s suitability for a blue card.
The Tribunal is not satisfied that PM has sufficient strategies in place to ensure that others, including children, will not be impacted negatively if she is faced with stressful, conflicted situations in the future. The ability of PM to cope with such situations has not been tested.
The Commissioner’s decision to issue PM with a negative notice is confirmed.
It should be noted that this decision is based on the evidence currently available, and on PM’s current circumstances. The Tribunal acknowledges the significant gains that PM has made in dealing with the trauma she has experienced over her lifetime. It is to be hoped that PM continues to maintain those gains in coming years. PM is entitled to lodge a further application for a blue card in two years time, and, should she do so, the Tribunal would encourage PM to provide evidence regarding her progress with her counselling and the management of her mental health conditions, and evidence as to how she has coped with the stress of having her former partner released from prison, and the ramifications for her relationship with her children.
Non-publication Order
The Tribunal is satisfied that a non publication order should be granted.
There is evidence before the Tribunal that PM’s former partner is a dangerous person and publication of details of parties and witnesses involved in this matter may place them or PM at risk. Further, the Tribunal is satisfied that any publication of identifying information would have an adverse effect on PM and on her children.
The requirements of openness and accountability are maintained with this non-publication order. Public interest issues are satisfied by permitting public access to details of this decision and the reasoning behind it. Identifying information is not required.
Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the name of PM, her children, her former partner, or of any other person providing evidence to the Tribunal in this matter.
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