Shiels v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 188
•28 May 2015
| CITATION: | Shiels v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 188 |
| PARTIES: | Roylene May Shiels (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML230-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 1 April 2015 |
| HEARD AT: | Toowoomba |
| DECISION OF: | Member Feil |
| DELIVERED ON: | 28 May 2015 |
| DELIVERED AT: | Toowoomba |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice is set aside and a positive notice is to be issued. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – where applicant’s positive notice was cancelled - where Applicant charged with offences other than serious offences - whether an exceptional case exists Commission for Children and Young People and Child Guardian Act 2000 (Qld) Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Roylene May Shiels appeared for herself |
| RESPONDENT: | Mr Peter Reid represented the Chief Executive Officer of the Public Safety Business Agency |
REASONS FOR DECISION
The former Commission for Children and Young People and Child Guardian issued Ms Shiels with a positive notice and blue card on 15 October 2012. At that time Ms Shiels had convictions for stealing (5 charges) in 1975, possession of a dangerous drug and a utensil in 1996, possession of and producing dangerous drugs in 1999, and assault occasioning bodily harm in 2002.
From 1 July 2014, the Working with Children (Risk Management and Screening Act) 2000 (Qld) (“the Act”) came into effect. This means that decisions formerly made by the Commission are now made by the Chief Executive Officer of the Public Safety Business Agency (“the Agency”). The Agency was notified that Ms Shiels (aged 58) was convicted on 17 September 2014 of two charges of leaving a child under 12 unattended. On all charges no conviction was recorded and Ms Shiels was granted probation for twelve months.
While no oral evidence from the Department of Communities, Child Safety and Disability Services (“the Department”) was given, the Tribunal received the Department’s file, which shows that the children were subject to an interim Child Protection custody order ending on 22 January 2014. It appears that the children are currently subject to a short term guardianship Child Protection Order ending on 15 July 2016.
On 6 November 2014, the Agency cancelled Ms Shiels’ positive notice and blue card. This meant that Ms Shiels could no longer live in her home outside Nanango with her long term partner Mr Scott Shiels, and her grandchildren Kiara born 19 June 2008, Bailey born 17 April 2011, and Caleb born 14 January 2013 (“the children”), as their kinship carer. The Department permits Ms Shiels to have contact with the children during the day. Ms Shiels has relocated to rental premises in Nanango. Mr Shiels gave up his fly in fly out employment, and now cares for the children full time.
It is not disputed that “the incident” which resulted in the negative notice issuing, occurred on 10 June 2014 when Ms Shiels left Caleb and Bailey unattended in her vehicle to go to the toilet at a nearby hotel. She admitted to playing the poker machines after going to the toilet. When Police attended, the children were distressed, crying and their clothes were wet through.
The issue for the Tribunal as Ms Shiels has convictions for offences other than serious offences, is that a positive notice must be issued unless the Tribunal is satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to Ms Shiels.[1] The screening of persons for child related work is administered under the principle contained in Section 6 of the Act that the welfare and best interests of children are paramount, and that every child is entitled to be cared for in a way that protects a child from harm and promotes the child’s wellbeing. The Tribunal must exercise its discretion after considering the circumstances of Ms Shiels’ case within the guiding principles of the Act.[2]
[1]Sections 221(1) and 221(2) Working with Children (Risk Management and Screening) Act 2000 (Qld).
2 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6.
The Tribunal must consider not only the provisions of s 226 of the Act, but the paramount consideration. This paramount consideration is the one to which all others yield.[3] Section 226[4] sets out the factors which the Tribunal must consider in determining if there is an exceptional case for Ms Shiels. The evidence considered takes into account s 226 of the Act. Exceptional case is not defined in the Act. Whether a case is exceptional is a matter of discretion, to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act.[5]
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[4]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.
[5] Kent v Wilson [2000] VSC 98.
Ms Shiels’ Evidence and Story
In respect of the incident, Ms Shiels parked intending to purchase items at the chemist, at which time Caleb and Bailey were asleep in the car. Instead, she had an urgent need to go to the toilet and went to the hotel directly opposite her vehicle, to use the facilities, and did not intend to use the poker machines. As she was walking out of the hotel, she put $1.00 into a poker machine. She then received a number of free games, which she played. She was then told that the Police were looking for her. She could not explain why she placed money in the machine, other than a lack of judgement. She stated that her actions were “totally wrong.”
Ms Shiels stated that the vehicle was not locked, and that while she had left the window down about two inches, Bailey could roll the window up. Ms Shiels assumed the children would be safe, as her vehicle was parked in front of Foodworks. She explained that this was a “bad judgement call,” and that she would not repeat her actions. She explained that she lost track of time at the hotel, was originally defensive with the Police, and went about things the wrong way. She knew she did the wrong thing and was not trying to minimise her actions. Ms Shiels stated that her actions were completely unacceptable, and it was the wrong thing to do. She was totally ashamed about her actions.
Ms Shiels referred to the children being in her care since November 2013, and to her not wanting to disrupt their attachment and routine, due to her “stupid actions”. She referred to Kiara’s Reactive Attachment Disorder, and to Kiara reacting if Ms Shiels is not present due to her attachment issues. Ms Shiels referred to Caleb and Bailey’s growth from when they came to live with her. She referred to Kiara now regularly attending school and receiving assistance for her learning difficulties, which did not previously occur, and to the children’s improvement since in her care.
Ms Shiels was concerned for the children’s emotional health, educational growth, and their future, if the children were removed from her. She was remorseful for allowing herself to “reach a point where she could do such a stupid and irresponsible thing.”
In her life story Ms Shiels referred to her children, Tracey Hilton from her first marriage, and Tier Paton and twins Leon and Ashley Paton from her second marriage. Ashley is the father of the children. Ms Shiels referred to those marriages ending due to domestic violence. Ms Shiels has been in a relationship with her current partner Scott Shiels, since 1988. She has nine grandchildren from 19 to one year of age. Ms Shiels referred to holding various types of full time employment until Leon was diagnosed with epilepsy, which impacted on her working full time. She referred to experiencing loss, including her parents’ deaths in her early twenties, losing everything in a fire, and the involuntary sale of the family home. She has been involved in the motorcycling community. She referred to her previous convictions and to stealing items from clotheslines at age 18, to using cannabis and being subsequently convicted for this use, and to her not using cannabis any longer. She referred to the assault charge as involving her former husband’s wife at that time.
Ms Shiels has been “hands on” with Kiara from her birth. She ceased her studies in Aged Care when she commenced caring for the children. Ms Shiels referred to her repeated requests of the Department for respite and support through the initial transition period, and to Kiara’s constant demands for her attention. Her priority was ensuring the children felt loved in a safe and secure home, as recommended by Dr Cox, Paediatrician.
Dr Cox’s letter of 3 May 2014 confirmed Kiara’s behaviour associated with Maternal Deprivation Syndrome, from an absence of consistent motherly support. This results in significant insecurity problems, attention seeking, and a constant need for reassurance, requiring a consistent parenting environment. He supported Kiara living with Mr and Ms Shiels. Dr Cox’s letter of 17 December 2014 recommended Kiara learning to work for achievements, by attending Girl Guides, Brownies or a church group. He anticipated some intellectual problems with Kiara, and to her needing a controlled situation.
Ms Shiels referred to Mr Shiels previously providing no emotional or physical support when he returned from work once every three to four weeks. She was emotionally and mentally worn down, due to Mr Shiels and his mother’s constant criticism and lack of support or encouragement for her. She considered that on the day of the incident, she was not of sound mind as her ability to make rational decisions and to be present in mind was temporarily impaired. She would never normally make such a choice, and will never do so again. She recognised placing Kiara in an emotionally traumatic position when she was unable to collect her from school after the incident.
Ms Shiels referred to being very stressed at the time of the incident, and to first feeling stressed about a month before the incident due to the criticism, which she felt was more stressful than caring for the children. She referred to Mr Shiels’ mother expecting Kiara to do things for herself without considering her need for assistance, as she has the mental age of a three year old. While Mr Shiels had attended the Paediatrician’s appointment, he listened to his mother. Ms Shiels referred to Kiara’s constant need for support and verification that she was loved, and to Kiara initially waking three to four times per night, and to her only now starting to sleep through the night.
Ms Shiels explained that on the day of the incident, whatever she did for Mr Shiels and his mother was not good enough. She explained that while Mr Shiels had no understanding of her levels of stress, he now understands her previous levels of stress, as he is caring for the children full time. Ms Shiels attends the home daily and does yard work, cooks and washes, to give Mr Shiels a break. Ms Shiels lives in a donga in Nanango and pays rent of $160.00 per week. She receives unemployment benefits.
Ms Shiels stated that after losing her blue card and since Mr Shiels has cared for the children, significant support has been put in place from the Department including the placement of Caleb and Bailey in child care, respite care, additional financial support, and support from Partners in Foster Care who visit regularly and offered her courses and the opportunity to meet other foster carers, if her blue card is returned.
Ms Shiels indicated that Kiara regressed after the incident, and was “clingy”. On starting school Kiara had to be carried up the stairs for three to four months, before she would go to the teacher. Ms Shiels wanted her blue card returned so she could return home and give the children support, ensure they attend school, know right from wrong, be loved, be independent, and to be able to take them to activities. She explained that Kiara would not attend Scouts as recommended by Dr Cox, due to her fears. If Ms Shiels’ blue card is returned, she will attend Scouts with Kiara, Mr Shiels will resume local employment, and the younger children will remain in child care. She will continue her volunteer work, as it gives her an interest outside the house.
Ms Shiels stated that she has learnt from her mistakes. She realises what could have happened to the children, and that it was “the most wrong thing to do”. She understood that she put the children in harms way, and that the incident should not have happened.
Ms Shiels referred to first calling the Department for assistance a couple of months after the children came into her care, and to receiving no return phone calls from the Department on three occasions. She could not afford to continue to pay child care fees of $120.00 per day, and could not receive fee relief, as Centrelink did not have a CRN. Ms Shiels was charged childcare fees of approximately $2500.00, due to her not giving notice to the childcare centre. She explained that the Department subsequently paid the outstanding child care fees, and Caleb and Bailey are now in day care four days per week, at no cost. She explained that previously, there was no involvement by the Department and the only involvement was with the “children’s advocate” (the Community Visitor).
Ms Shiels stated that her relationship with Mr Shiels’ mother is now “fine”, as her Psychologist has taught her not to accept what she says, and she now questions her statements and feels more capable with her. She feels much better about herself, and enjoys volunteer work at the “op shop”. Ms Shiels indicated that apart from her concern for the children, she no longer has any stressors. Mr Shiels now understands what is involved in caring for the children, and would be more open to sharing the care of the children, as he realises the need for both grandparents to be involved in the care of the children.
In respect of her psychological therapy, Ms Shiels explained that she can now identify triggers of stress such as being criticised, and to now having strategies to respond to these stressors. Previously her biggest stress was the constant care of the children, their waking through the night, and having no opportunity to relax. Currently the children are in child care, and Kiara has extra support. Intellectually Kiara is “coming ahead in leaps and bounds”. Ms Shiels will continue to consult her Psychologist, as she has given her confidence. Ms Shiels now realises that she needed support to help the children, whereas it has turned out that she has “betrayed” them.
Ms Carolyn Bartenstein - Clinical Psychologist
Ms Bartenstein’s report dated 2 February 2015, confirms that she was aware of the circumstances of the cancellation of Ms Shiels’ blue card. That report referred to Ms Shiels’ concern for Kiara, her understanding of Kiara’s emotional issues, her commitment to giving the children a secure and stable home life, and her frequent regret over the situation. It referred to Ms Shiels’ desire to receive support from the Department and other services including therapy from Ms Bartenstein, so that she can continue to care for the children. Ms Bartenstein reported that Ms Shiels is very insightful about the impact of her behaviour on the children, and to her strong child focus to the extent that she put her needs aside for the children’s needs, putting her wellbeing at risk.
The report referred to Ms Shiels previously struggling with the demands of the children, and to her attempts to obtain assistance from the Department. She referred to the criticism from Mr Shiels’ mother, leading to her becoming stressed and anxious. Ms Bartenstein referred to Ms Shiels losing track of time at the hotel, and to this warping of perception of time in her professional experience, often being reported by individuals under stress.
Ms Bartenstein referred to the protective factors to reduce the risk of a repetition of Ms Shiels’ behaviour, as increased support from the Department, seeking psychological help, her awareness of the effect of stress on her behaviour, receiving therapy about the triggers which led to the incident, and ongoing psychological sessions to prevent this behaviour reoccurring.
Ms Bartenstein identified the preventative strategies to reduce the risk of repetition of Ms Shiels’ behaviour as including the current support from the Department, the children attending child care giving Ms Shiels the ability to look after her own needs, her wish to attend courses offered by Partners in Foster Care, Ms Shiels continuing to receive psychological therapy, and the children receiving additional financial support and practical assistance.
In her oral evidence, Ms Bartenstein stated that Ms Shiels has had five sessions from January to March 2015. She referred to Ms Shiels’ uncharacteristic behaviour on the day of the incident, to her being distressed and guilty at what she had done, and to her lapse of judgement. She referred to Ms Shiels not having any strategies available to her on the day of the incident. Ms Bartenstein referred to Ms Shiels’ psychoeducation as including stress management and recognising the stressors at the time being the lack of support from Mr Shiels, his mother, and agencies. She referred to Ms Shiels feeling very disempowered and struggling to do what she believed was best for the children. Ms Shiels has progressed and is now more aware of the impact of stress on her. She engages in mindfulness, relaxation, controlled breathing, and cognitive behaviour therapy.
In respect of risk factors, Ms Bartenstein stated that Ms Shiels was able to reflect on the situation and recognise that her judgement was impaired. When Ms Bartenstein last saw Ms Shiels on 24 March 2015, her judgement was stable, and her self-care strategies were a long term advantage. She assessed Ms Shiels’ day to day risk as “very good,” and to her having a very high awareness of the children’s needs. Ms Bartenstein explained that while Ms Shiels’ devotion to the children put her own well being at risk, following therapy she has gained insight into her need for “time out” and self care strategies such as volunteering, building self esteem, being in control, and having supports in place. Ms Bartenstein explained that Ms Shiels puts these strategies into practice and makes them part of her life.
Ms Bartenstein explained that Ms Shiels had approval for six sessions under a Mental Health Care Plan. She recommended a further four sessions available under the Plan, to maintain her achievements after six months, and to provide ongoing support. Ms Bartenstein had no concerns regarding Ms Shiels after she attends the ten sessions. Ms Bartenstein did not consider that Ms Shiels had any long term mental health issues, and that the Mental Health Care Plan is designed as an early intervention tool.
Ms Bartenstein referred to Ms Shiels’ strengths as being very caring and devoted to the children, to not being afraid to ask for help, and to receiving it positively. She referred to Ms Shiels taking the Paediatrician’s advice on board, and to her reading about attachment issues to understand the children more. While Ms Shiels was initially stressed, anxious, tearful and distressed, after implementing strategies, Ms Shiels is now calmer and more insightful as to the impact of stress on her judgement. Her voluntary work has been positive, empowering, and energy giving, and is not a stressor.
In terms of future stressors and supports, Ms Bartenstein considered that support would continue from Mr Shiels, Partners in Foster Care, and Ms Shiels’ ability to link with others in similar situations. The children are receiving more support through intervention and assistance, and are attending childcare. Ms Shiels has insight into her own stressors and when she identifies them, asks for support. She considered that Ms Shiels would engage a Psychologist if future stressors became overwhelming for her.
Ms Bartenstein “highly doubted” that there would be a risk of Ms Shiels reoffending, as at the time of the incident she was very stressed and her behaviour was not characteristic of her, given her history of care of her own children has always been very responsible. She initially assessed the level of risk for Ms Shiels and the children as no risk, before modifying this risk to low, given that it is probably unlikely that anyone would ever be no risk of reoffending. Ms Bartenstein considered that Ms Shiels would not put herself in the same situation again, as she has strategies to deal with stressors differently. She has developed mechanisms to deal with the children. She and Mr Shiels would share in the support of the children.
Ms Bartenstein having not seen the children, could not comment if it was in the best interests of the children for Ms Shiels’ blue card to be reinstated. However, she commented that generally children with detachment disorder benefit from consistent care. She considered that Ms Shiels’ protective factors out weigh the risk factors.
The Department
The Department’s file shows that as early as 9 January 2014 at a placement meeting, Medicare cards were requested. On 17 February 2014 during a home visit, the Child Safety Officer (CSO) undertook to discuss linking Mr and Ms Shiels with the local foster care agency. On 4 March 2014, reference was made to Ms Shiels looking into childcare for the children. On 24 March 2014, reference was made to Ms Shiels’ attempts to have the children attend childcare, and to Child Safety Services proposing to make at a minimum, monthly home visits. On 9 April 2014, Ms Shiels advised the CSO that she was struggling to cope with Kiara’s complex behaviours. On 14 April 2014, Ms Shiels stated that she was mentally exhausted at times when Kiara’s behaviour is heightened. She referred to Mr Shiels “sometimes struggling when all three children are playing up.” On 29 May 2014, Ms Shiels requested Medicare cards and sought childcare funding from the Department. She advised that she was yet to consult with a foster care support agency.
The documents refer to home visits in March 2014 before the incident in June 2014, and to subsequent visits in June, July, August, September and October 2014. A Standard of Care review report action plan made after the incident on 1 August 2014, refers to Ms Shiels indicating on 23 June 2014, that she could not afford day care fees, to a day care bill having accrued, and to her not having Medicare cards for the children. Departmental officers referred to the process of obtaining the CRN. On that day the younger two children were observed as having a strong attachment to Mr and Ms Shiels, and to them reaching out to them for affection. This plan refers to Ms Shiels’ isolation in the community, and to the Department not implementing actions required at the March Family Group Meeting, including a referral to a foster carer support agency, and following up the children’s health documents. It refers to day care not having been actioned, and to the “financials” not having been discussed or explained to the carers to support them to access day care, when it was originally case planned. It noted that home visits had not been conducted regularly. The report concluded, “It is my assessment that this situation may have been possibly avoided if ongoing support which was planned, was provided to the carers and the children.”
Referees
A letter from Nanango State School dated 26 November 2014, refers to Kiara initially being very withdrawn and extremely dependent on Ms Shiels. It refers to Ms Shiels’ active collaboration with the school, to Kiara’s increased rate of school attendance, and to her significant developmental growth to a girl who smiles and has developed independence.
Ms Diane Boughen’s reference refers to her full knowledge of Ms Shiels’ recent conviction. She has known Ms Shiels for seven years and considers Ms Shiels’ actions in straying from her commitment to care for her grandchildren, to be completely out of character. She referred to Ms Shiels being utterly despondent at the impact her actions could have had on her grandchildren’s future.
Ms Hilton who is Ms Shiels’ daughter, gave a written reference dated 8 January 2015, and oral evidence. Ms Hilton was aware of the incident, and to Ms Shiels becoming more aware of the significance of the risks in leaving the children unattended. She referred to Ms Shiels not thinking rationally at that time, to there being a lot of stress, and to Ms Shiels not coping. Ms Hilton was astounded that Ms Shiels acted in the way she did without being mindful of the children, as that was not something she would ordinarily do. She referred to Ms Shiels needing “time out” from caring for the children without any real support. She referred to Ms Shiels being really pleased she has attended counselling.
Ms Hilton referred to the positive change in the children’s behaviour through the increased stability in the home, to them now being able to converse with Kiara, and to the children developing social skills and being socially stimulated. She referred to Ms Shiels’ awareness of her access to resources and support, and to her learning to deal with issues from her Psychologist. Ms Hilton stated that she and her brother make more effort to be present in Ms Shiels’ life. She would never hesitate to prevent her own children from spending time with Ms Shiels, if she believed they were unsafe or at risk.
Mr Justin Shiels, Mr Shiels’ brother, gave a written reference dated 12 November 2014, and oral evidence. He referred to Ms Shiels’ primary care of the children, to her efforts in ensuring the children socialise, to the change in the children with more stability in their home, and to Kiara’s positive social outcomes. Mr Shiels was concerned about Ms Shiels’ ability to care for the children following the most recent charge. He referred to Ms Shiels being able to adapt to all situations, to “pick herself up”, and to things going well with the children.
Ms Tracy Ferguson gave a written reference dated 6 January 2015, and oral evidence. She has known Ms Shiels for over twenty years and is aware of the most recent charge. She was shocked to hear of the incident, as it was extremely out of character for Ms Shiels. She referred to Ms Shiels’ genuine remorse for her behaviour, to her understanding the seriousness of the position she placed the three children in, to how disgusted she was with herself, to her realising her actions were wrong, and to her having no help at that time. Ms Ferguson believed Ms Shiels’ actions were of a grandmother who was significantly stressed, and to the situation being compounded by a lack of support with zero “downtime” for self care.
Ms Ferguson referred to the huge improvement in the children’s wellbeing, and to Kiara’s improved social and motor skills, and confidence. She referred to Kiara “slipping into her shell” since Mr Shiels has cared for the children. She was aware that Ms Shiels is now receiving counselling and considered that if Ms Shiels became stressed in the future, she would know that she could reach out for help. She considered Ms Shiels could make decisions in the best interests of the children, as she is now a totally different person. She had every confidence that Ms Shiels can care for children without placing their safety and well being at risk.
Ms Kylie Paton provided a written reference dated 6 January 2015, and gave oral evidence. She has known Ms Shiels for nearly ten years and is Ms Shiels’ daughter in law. She referred to the children being happy and thriving in Ms Shiels’ care, and to Kiara having regressed since Ms Shiels has not cared for her. Ms Paton stated that Ms Shiels was very embarrassed and knew that her actions in leaving the children unattended were wrong, that she was not thinking, and that she would not repeat this behaviour. She could tell that Ms Shiels “wasn’t herself”. She referred to the incident being a “one off” incident, when Ms Shiels was not thinking.
In Ms Paton’s professional experience as a childcare educator and blue card holder, Ms Shiels presented no risk to the safety of children. Ms Paton considered that such an incident would not happen again, as Ms Shiels was getting lots of help, is seeing a Psychologist, and is “back to her old bubbly self”. She has no concerns regarding Ms Shiels’ care of her children or children outside her family. Ms Paton gave her full support to Ms Shiels retaining her blue card to provide full time care for the children.
Mr David Cox gave a written reference dated 8 November 2014, and oral evidence. He is aware of the incident and referred to Ms Shiels being remorseful for the unintentional miscarriage of supervision in leaving the children in the vehicle. He believed that recent pressures of Mr Shiels working away from home, family issues, and the tension of raising three small children, may have played a large part in Ms Shiels’ lapse of judgement. Mr Cox considered that Mr and Ms Shiels’ ability to look after the best interests of children was good, as they were experienced and good parents. He had no concerns about them. He referred to Ms Shiels having a moment where she slipped up.
The Tribunal will consider if the protective factors outweigh the risk factors, in determining whether or not an exceptional case exists.
Ms Shiels’ Protective Factors
Ms Shiels has the support of her long term partner Mr Shiels, and her adult children. Her family are protective factors for her. Following therapy and developing stress management skills, Ms Shiels has a more positive relationship with Mr Shiels’ mother.
If Ms Shiels is issued with a blue card, Mr Shiels will seek employment locally and will be present to support Ms Shiels with the care of the children.
Ms Shiels has shown ongoing and genuine remorse for her actions.
Ms Shiels was candid in giving her evidence, particularly of her actions on the day of the incident. The evidence is that this was an unintentional one off incident, which occurred at a time when Ms Shiels was experiencing a high level of stress in her life.
Ms Shiels now recognises that she was not coping at that time and lacked support, which has changed considerably. She now has support from the Department and receives visits from Partners in Foster Care. If her blue card is returned, Ms Shiels will enrol in courses offered by Partners in Foster Care.
Caleb and Bailey now attend day care four days per week. This enables Ms Shiels to have an interest outside the home undertaking volunteer work, which she proposes to continue, to enhance her self-esteem.
Ms Shiels is continuing to engage with her Psychologist. Ms Bartenstein considers that Ms Shiels’ risks to the children and other children are low, and that her protective factors outweigh the risk factors due to Ms Shiels’ level of insight and her strategies developed to minimise risks.
Ms Shiels’ judgement is now intact. She now has insight into the impact of her past inappropriate behaviour at the time of the incident and the risks to the children arising from her behaviour. Ms Shiels is insightful as to the effect of stress on her behaviour. She can recognise triggers leading to stress, and has developed techniques to minimise the impact of stress on her behaviours.
Ms Shiels does not identify any stress in her life except for her concern for the children while they are not in her full time care.
The Chief Executive Officer’s Position and the Risk Factors
The Agency’s reasons identified that Ms Shiels’ recent conviction was directly child related. The reasons outline Ms Shiels’ previous convictions, which remain relevant to the Tribunal’s decision, and which with her current conviction, span a period of 39 years.
The reasons refer to the young age of children, to their vulnerability to harm, and to their reliance on Ms Shiels. The reasons indicate that Ms Shiels left the children unattended for a period exceeding 30 minutes, and to the children being removed from her care overnight. The Agency did not consider the Department’s failure to provide ongoing support as mitigating the risks of leaving the children alone, over ensuring their safety and well being.
The Agency noted that as Ms Shiels’ twelve month probation order has not expired, Ms Shiels has not had the opportunity to independently manage the issues which led to her offending. The reasons refer to Ms Shiels’ criticism of the manner in which the Police handled the incident, and to her reference to these actions and the actions of the Department, rather than appreciating that these actions were a consequence of her actions.
The Agency provided written submissions at the conclusion of the hearing, which in part do not take into account the evidence received at the hearing. These submissions note the absence of evidence from Mr Shiels, Ms Shiels’ probation officer, and the courses proposed by Partners in Foster Care. The submissions refer to Ms Shiels’ risk factors as including her criminal convictions over a period of 39 years.
The submissions refer to Ms Shiels’ level of remorse, the wrongfulness of her actions, and her belief that her actions would not be repeated. The Agency refers to Ms Shiels failing to recognise the consequences that may have resulted had members of the public not intervened and offered protection to the children, and to Ms Shiels not recognising the severe emotional harm that her actions would no doubt have caused the children. In oral submissions, Mr Reid referred to this appreciation occurring after Ms Shiels received therapy.
The submissions refer to Ms Shiels not satisfactorily addressing issues related to her stress. In oral submissions, Mr Reid referred to Ms Shiels only accessing therapy in January 2015, when the offence occurred in June 2014. He referred to some witnesses not observing Ms Shiels’ stress, and to her possibly having an ability to mask signs of stress.
The Agency submitted that Ms Shiels has not demonstrated an ability to promote and protect the best interests of the children, and that insufficient time has passed to be satisfied that Ms Shiels has adequately addressed the risk factors identified, after only five sessions of therapy.
Conclusions
The Tribunal acknowledges that Ms Shiels has taken positive steps to engage in therapy and develop skills and mechanisms to deal with stress. The Tribunal is satisfied that many of the stressors present at the time of the incident, are no longer present. Ms Shiels has respite while the children are in childcare, and has achieved personal satisfaction through volunteer work. She has been visited by Partners in Foster Care, has the opportunity to attend courses if her blue card is returned to her, and has a greater level of support from the Department. Mr Shiels is no longer working away and is available to assist in the care of the children.
The Tribunal is satisfied from the evidence and in particular, the evidence of Ms Bartenstein, that the protective factors outweigh the risk factors in this case. Ms Bartenstein considers that Ms Shiels’ stressors have been addressed by stress management strategies, and to Ms Shiels’ current risks being such that Ms Bartenstein would “highly doubt” that she would reoffend.
The Tribunal notes that with the exception of the latest conviction in 2014, Ms Shiels was previously granted a blue card, despite her history of convictions at that time from 1975 to 2002.
The Tribunal does not accept the Agency’s submission that Ms Shiels failed to recognise the dire consequences of her actions. The evidence of Ms Shiels and others is that Ms Shiels is extremely remorseful and understands the harmful situation in which the children were placed.
The Tribunal finds that from the steps taken subsequent to the incident by the Department in providing increased supports for Ms Shiels and the children, and from Ms Shiels’ continued engagement in psychotherapy and learning strategies to deal with stressors in her life, that she has now demonstrated an ability to promote and protect the best interests of the children.
The transferability of a blue card means that if successful with her application, Ms Shiels would have unfettered and unsupervised time with all children, not only her grandchildren. The Tribunal takes into account as a significant consideration, the transferability of the positive notice across any area of child related employment.
The Tribunal is not satisfied that Ms Shiels’ current risk factors raise concerns about her ability to make appropriate behavioural choices in the best interests of children and young people.
For these reasons, the Tribunal finds that Ms Shiels’ positive notice must be continued as this is not an exceptional case in which it would not be in the best interests of children for Ms Shiels to be granted a blue card. The Tribunal finds on the balance of probabilities, that the statutory presumption that a positive notice should issue, has not been rebutted. The Tribunal makes this finding given the consideration that the safety of children is paramount in the Tribunal’s determination of whether an exceptional case exists.
Decision
The Tribunal sets aside the decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice, and a positive notice is to be issued to Ms Shiels.
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