RJ v Department of Communities (Child Safety Services)

[2010] QCAT 619

CITATION:		RJ v Department of Communities (Child Safety Services) [2010] QCAT 619
PARTIES:	RJ
v
Department of Communities (Child Safety Services)

APPLICATION NUMBER:   CML087-10

MATTER TYPE: Childrens matters

HEARING DATE:     28 October 2010

HEARD AT:  Brisbane

DECISION OF: Tammy Williams, Presiding Member
Gwenn Murray, Member
Maureen O’Regan, Member

DELIVERED ON: 6 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The application is dismissed.

CATCHWORDS :  Sections. 87 and 6 of the Child Protection Act 1999; suspension of all contact; requirements when a significant decision is made about an aboriginal child; adequacy of a cultural support plan; non-compliance with the Child Placement Principle; application of the welfare and best interests of the child principle

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	RJ
RESPONDENT:	A representative of the Department of Communities (Child Safety Services)

REASONS FOR DECISION

[1]    An application was made by RJ, the mother of the subject child, seeking a review of the Department’s decision on 20 April 2010 to suspend all contact.

[2]    The Tribunal held a stay hearing and compulsory conference on 29 July 2010 and set the matter down for a two day hearing.  On Thursday and Friday, 28 and 29 October 2010 a hearing was held into this matter to determine whether it is in the best interests and welfare of the child to suspend contact with his mother RJ.

[3]    Although leave was granted, the applicant appeared at the hearing without legal representation.

[4]    At the end of the hearing the Tribunal reserved its decision.

Law Which Applies in this Matter

[5] Section 87 of the Child Protection Act, makes provisions for the Chief Executive to provide contact between the child and the child’s parents.

[6] Pursuant to s87(1) the Chief Executive must provide opportunity for contact between the child, parents and appropriate members of the child’s family as often as it is appropriate in the circumstances.

[7] However contact may be refused, restricted or have conditions imposed pursuant to section 87(2) if the Chief Executive is satisfied it is in the child’s best interest to do so or it is not reasonably practicable in the circumstances for the parents or family members to have contact.

[8]    On 20 April 2010 the decision was made to suspend all contact between the applicant and her son.  The Department’s decision was communicated to Ms RJ in writing.

[9] Because the subject child and his family identify as and are accepted by members of an Indigenous community in the South East Queensland region as being Aboriginal, the provisions outlined in section 6 of the Child Protection Act apply.

Issues at Hearing

[10]  It was argued by the applicant, Ms RJ for the need of a two year old Aboriginal child to maintain an attachment with his mother and Indigenous culture.  Therefore the Department’s decision to suspend all contact with the applicant was said to be detrimental to the subject child.

[11]  Conversely the Department argued there was sufficient evidence to indicate that the supervised one hour weekly contact periods between the mother and child, was causing an adverse psychological and physiological affect on the subject child.

[12]  The Tribunal considered each of these issues within the statutory framework of what is in the welfare and best interests of the child.

Evidence before the Tribunal

Physical and Psychological Harm

[13]  The child is currently subject to an Interim Child Protection Order.  A Notification was received on 28 December 2008 and the child was removed from his parents’ care.  An application to grant a Long Term Guardianship Order to the Chief Executive has yet to be determined by the Children’s Court.

[14]  Before the age of six months the subject child sustained non-accidental fractures to his:

·Upper arm - a spiral facture consistent with a ‘twisting action’ of the limb; and

·Left rib - which was more than two weeks old at the time of detection.

There is no evidence of immediate medical treatment ever being sought by the caregivers to treat the latter injury.

[15]  At hearing Ms RJ denied any personal responsibility for these injuries.  Although the child was an infant and in her care at the relevant time, the applicant mother was unable to explain the cause of the rib fracture and failed to detect any signs of post-trauma or distress, such as unexplained crying.

[16]  Ms RJ gave evidence of past domestic violence in the home at the time when the spiral fracture was said to have occurred.  Despite providing a brief description of the circumstances surrounding the upper arm injury, she could not provide the Tribunal with specific details of how the injury occurred, other than hearing the baby “scream when he was in another room with his father.”

[17]  A recent medical report prepared by Dr Vu of the Mater Children’s Hospital details the significant health problems currently experienced by the child (currently two years of age), including:

·     Bowed legs and in-turning of the tibia (shin bone) which may require surgery if the deformity persists;

·     Delayed speech;

·     Mild hearing loss;

·     An occurrence of febrile convulsion, secondary to upper respiratory tract infection;

·     Anaphylaxis (severe allergic reaction) requiring adrenaline emergency medication;

·     An allergy to milk protein and possible reaction to gluten, pumpkin, potato and spinach.

[18]  Additional evidence from the Department also notes a diagnosis of rickets “likely from infant malnutrition” and suggests the most probable cause of the child’s milk protein intolerance is “being fed full fat [cow’s] milk as an infant.”  During the hearing, Ms RJ questioned the diagnosis of milk protein intolerance and denied the child ever being fed cow’s milk when in her care.

[19]  The Department argued the applicant mother has previously demonstrated an inability to provide adequate supervision and care to the child, by citing an occasion whereby she fed him food containing milk protein (despite his intolerance) during a contact visit.

[20]  Over a period of several months the Department monitored the child’s behaviour post contact with his mother by considering the observations of the foster carer, psychologist and departmental staff.  Based on this evidence the following submissions were made to the Tribunal:

a)The child exhibits clear behavioural escalations triggered by contact with his mother;

b)The behaviours are likely related to trauma and emotional harms previously experienced whilst in her care;

c)Due to his age the child does not have the cognitive or developmental skills to manage the emotions that are triggered by contact with his family; and

d)Being at such a crucial age speech formation, fine and gross motor skills, social and peer relationship development all require concentrated effort and support.  Therefore the child’s progress is disrupted and lost each week because of the trauma of contact.

[21]  The Department states the decision to withhold contact between the applicant mother and her child was not taken lightly – trialling strategies over a period of time to ensure there was at least some degree of contact; such as reducing contact from two hours twice a week to one hour once a week in a playgroup environment.  Although this achieved a reduction in the trauma based behaviours displayed post contact, the behaviours nonetheless still existed (but less frequently, consistent with the reduction of contact) and continued to adversely affect the child’s development.

[22]  The Tribunal heard evidence that since contact has been suspended the child has shown significant improvement with speech, digestion, appropriate weight gain and is now accepting solid food (as opposed to a reliance on his bottle).  In addition the foster carer stated the child has established good sleeping patterns and his need for self soothing has gradually ceased (i.e. being less clingy to his carers and has become independent in his play).

Maintaining relationships with family, community and placement in culturally appropriate care

[23]  It is a general right of any child to inter alia be placed in culturally appropriate care and to maintain relationships with his family and community as set out in Schedule 1 of the Child Protection Act.

[24]  Specifically in relation to Aboriginal and Torres Strait Islander children in care the Act imposes additional obligations upon the Department. 

Section 6(1) states:

When making a significant decision about an Aboriginal or Torres Strait Islander child, the Chief Executive or an authorised officer must give an opportunity to a recognised entity for the child to participate in the decision-making process (section 6(1)).

Section 6(5) directs the chief executive or an authorised officer to:

As far as is reasonably practicable …must try to conduct consultations, negotiations, family group meetings and other proceedings involving an Aboriginal person or Torres Strait Islander in a way and in a place that is appropriate to Aboriginal tradition or Island custom.

[25] The Tribunal is not satisfied the Department has engaged with the child’s family and/or members of his Indigenous community in a manner as required pursuant to Section 6(5). A report commissioned by the Department and compiled by the One Chance at Childhood Team included a Cultural Support Plan for the subject child.

[26]  Although the Plan was prepared with the assistance of a Recognised Entity, the applicant argued the organisation has had limited interactions with her family and Indigenous community; and therefore does not have the requisite knowledge to develop a cultural plan for the subject child.  This is evidenced by the fact the plan contained inaccurate information (assuming the child belonged to a particular clan group without verifying with the family or community group) and is not case specific – providing for only two generic cultural activities:

“[Participation during] NAIDOC Week 5-12 July 2010”

“[The] Recognised Entity to provide support to Foster Placement including education and resources to carers and children including, information about Inala Library resource information.” 

[27]  The Department admitted during the hearing that “the Cultural Support Plan is inadequate.”

[28]  The Department also acknowledged the subject child’s current foster care placement does not comply with the Child Placement Principle due to the lack of availability of culturally appropriate placements.  Initially the child was temporarily placed in the care of his maternal grandparents however was later removed because they were assessed as not being suitable Kinship Carers.

[29]  Notwithstanding the inadequacies of the Department’s Cultural Support Plan, the non-Indigenous foster carers have on their own volition, provided the child with some level of engagement with the broader Indigenous community.  In particular the Tribunal notes that the child is being treated by an Indigenous Speech Pathologist and has the opportunity to attend ‘play-dates’ with his siblings (who are also in care).

Application of the Welfare and Best Interests of the Child Principle

[30]  The Child Protection Act is to be administered under the principle that the welfare and best interests of child are paramount.

[31]  The term is not defined by the Act.  However the ambit of the principle was considered by the Queensland Court Appeal in the context of regulated (child-related) employment.  McPherson JA in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 (‘Maher’s Case) confirmed that the welfare and best interests of a child was the paramount consideration “to which all others yield”.

[32]  The Tribunal is also guided by the federal Family Law Act 1975.  Recent reform has resulted in an enunciation of the factors a court must have regard to when determining what is in a child’s best interests in parenting disputes; with section 60CC providing for two tiers of considerations.  Although the right of a child to “enjoy his or her Aboriginal or Torres Strait Islander culture” (subsection 3(h)) is one such factor, the Act expressly provides for the “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” as a primary consideration – pursuant to subsection 2.

[33]  In the present matter, the Tribunal recognises the importance of the child to maintain his Aboriginal culture.  However it is noted the Department’s decision to suspend contact with the applicant mother, does not prevent contact between the subject child and other members of his maternal family or Aboriginal clan group.

[34]  The Tribunal is satisfied there is sufficient evidence to indicate that the concerning behaviours exhibited by the child are most likely triggered by contact with his mother and causing an adverse psychological and physiological affect.   In particular the Tribunal accepts the evidence of the Psychologist.

“[The child’s] developing body has not been given the opportunity to heal, and the extent of permanent damage is questionable.  Stress and the exposure to traumatic situations and stimuli, inhibits the body from repairing itself.  Therefore [the child’s] experienced distress is impacting on his ability to engage in a healthy regime to heal.  Stress weakens the body’s immune response and subsequent exposure to stress and trauma will make [the child] sicker and more susceptible to illness.  Increased illness post family contact appears to be a psychosomatic response that is [the child’s] communication to others that he is in distress” (at page 15 of Ms Howse’s report).

[35]  Therefore in consideration of what is in the welfare and best interests of the child, the Queensland Civil and Administrative Tribunal confirm the decision made by the Department of Communities (Child Safety Services) on 20 April 2010 to withhold contact between the applicant and subject child.