T v Department of Communities (Child Safety Services) - [2012] QCAT 305

CITATION:

T v Department of Communities (Child Safety Services) [2012] QCAT 305

PARTIES:	T (Applicant)
v
Department of Communities (Child Safety Services) (Respondent)

APPLICATION NUMBER:

CML150-10

MATTER TYPE:

Childrens matters

HEARING DATE:

28 and 29 July 2011

HEARD AT:

Townsville

DECISION OF:

M Johnston, Member
J Wiltshire, Member
K Schmider, Member

DELIVERED ON:

21 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of 27 August 2010 that T is not a “suitable person” to be a foster carer is set aside.

2. Subject to T obtaining a Blue Card, and prior to issuing a certificate of approval, the Department should review all information available, including that from the Tribunal process and contained in this decision. They must then make their own decision about whether or not to place conditions on T’s Certificate of Approval.

CATCHWORDS:

Foster care approval – risk assessment – assessment of sexual abuse – nudity and child protection – investigation processes

APPEARANCES and REPRESENTATION:

APPLICANT:

RESPONDENT:

Brooke Kruger Central Screening Manager and Tracey Barrett Advisor Court Services

REASONS FOR DECISION

History of the application

On 20 September 2010 T lodged an application to review a decision made by the Department of Communities (the Department) to refuse his application for an authority under section 136 of the Child Protection Act 1999 (the Act).In effect he was judged to be “not a suitable person” to be a foster carer.
He was advised of this decision by letter on 27 August 2010.
Compulsory conferences was conducted on 3 November 2010 and 21 March 2011.
A full hearing of the matter took place in Townsville on 28 and 29 July 2011.

Background to the application

T is the father of four daughters. In December 2000 his then wife left the family after forming a relationship with another man, leaving the children in his care; they were aged 11, 9, 6 and 5 at the time. He was also left with the care of two of his wife’s sister’s children aged 12 and 7 years. He cared for these six children for several months. The nephew and niece remained in his care for approximately two years after which their mother collected them.
A subsequent Family Court action resulted in his children’s mother being granted custody of the girls with T having them every second weekend and half the school holidays. Shortly afterwards a dispute resolution process resulted in an agreed fifty/fifty arrangement and since then the children have moved regularly between the parents who reside within walking distance of each other.
Following his application to be approved as a foster carer, T participated in the ‘Quality Care: Foster Care Training’ programme and in early 2010, Pathways Community Care was engaged to conduct “an initial approval assessment”. The resulting report dated 25 January 2010 recommended his approval as a General Foster Carer for a period of twelve months.
Subsequently his application was referred to the Central Screening Unit where a history of child protection notifications was revealed and resulted in his application being rejected.
In conducting her assessment, the Pathways assessor, Ms Shepherd, was not provided with this child protection history. She was therefore unable to consider this information and address the concerns with T during her assessment; this limited the scope and usefulness of the assessment.
The Department is unable to explain why training and assessment occurred prior to checking the child protection history as this is not the usual process. After assessment of the history T was advised by letter dated 15 August 2010 that he was judged to be not a “suitable person” to be a foster carer.

The law to be applied

Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), empowers the Tribunal to review a decision made under the Child Protection Act 2009 (“CPA”).
Pursuant to s 24 of the QCAT Act, the Tribunal may:
a)Confirm or amend the decision; or
b)Set aside a decision and substitute its own decision; or
c)Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the decision-maker considers appropriate.
Under the QCAT Act the Tribunal is empowered to:
·perform the functions conferred on it by either the QCAT Act and the CPA and has all the functions of the decision-maker for the reviewable decisions being reviewed; and
·hear and decide the review by way of a fresh hearing on the merits; and
·is not bound by the rules of evidence and may inform itself in any way it considers appropriate.
Section 135(1)(a) provides that the chief executive must not grant an application for, or renew, a foster carer certificate unless the chief executive is satisfied of the following matters:
i)the applicant is a suitable person to be a foster carer: and
ii)all members of the applicant’s household are suitable persons to associate on a daily basis with children; and
iii)the applicant and each member of the applicant’s household have a current positive notice; and
iv)the applicant is able to meet the standards of care in the statement of standards; and
v)the applicant is able to help in appropriate ways towards achieving plans for the protection of a child placed in the carer’s care.
The definition of a suitable person (in accordance with s 135(1)(a) of the Act) is outlined in Schedule 9 of the Child Protection Regulation 2000 (the Regulation):
9 Suitable person – Act sch 3, definition of “suitable person”
(2) A person is a suitable person to be an approved foster carer of a child if the person –
(a)does not pose a risk to the child’s safety; and
(b) is able and willing to protect the child from harm; and
(c) understands and is committed to, the principles for administering the Act: and
(d) has completed any training reasonably required by the chief executive to ensure the person is able to properly care for a child.

The evidence before the Tribunal

T was 46 years of age at the time of the hearing of this matter; and his children are aged 22, 20, 17 and 16.
He states that since his marriage ended in 2000 he has been single apart from one relatively brief (two year) relationship but they did not live together; for the past five months he has had a girl friend but does not live with her.
T stated that he had a great childhood, his parents separated when he was aged eight/nine but they lived close to each other and he had free access to both parents.
He left home at seventeen to become an apprentice train driver and worked as a train driver for about ten years. When it became apparent that his wife was not coping with their two first born children, he left that job because it required him to be away from home too much. The family then moved to Queensland and for a time he ran a handyman service.
He is now runs his own business. He describes this as providing a full time wage for a part time job. Most of his work takes place at the weekend, and often involves travelling to outlying towns. During the week there is administrative work to be undertaken but his work time can be flexible. He has other operators who can attend to displays when necessary, including his eldest daughter.
He was prompted to become a foster parent by this flexibility in his work life, as well as his belief that he has something to offer children; he has room in the house and thinks he would be good at fostering.
On leaving the family, T’s ex-wife left a note for him which in part read, I love my children so much that as much as this hurts I know that there (sic) in good hands. The Tribunal was provided with a copy of this handwritten note. Records indicate that her new relationship was relatively short and problematic and she soon began to seek custody of the girls.
In December 2001 and early 2002 the Department investigated a number of allegations received in relation to T’s relationship with his children. This resulted in a finding of substantiated risk of ongoing emotional/sexual harm due to inappropriate sexual touching. In summary the matters investigated, some of which came in over time, were;
·allegations of sexual abuse, paedophilia and drug use and selling by T;
·he had pornographic material on his computer and has shown this to his daughters;
·he grabs the girls boobs;
·he makes the girls undress to see how they are developing and had “naked nights”.
Other information collected while taking this information, was that the mother was sexually abused as a child and is very cautious, and that she is frightened of her ex-partner who hates T and is always making threats against him.
Following interviews with the children by Police and Child Safety in January 2002 the Police recorded the following:
L aged 10yrs stated those on occasions (T) had checked her for sores on her legs, arms and torso. She could not give specific details of theses occurrences however she stated that they made her feel uncomfortable and that she did not want them to occur again.
S aged 7 and J aged 6 made almost identical statements.
K aged 12 stated that while she was living with (her Father) (he) would routinely ask her to strip so that he could inspect her for sores or pimples. On one occasion he squeezed a pimple on her right breast. … K was very vague with details and it appeared she was reluctant to provide information in relation to these incidents. However, (she) did state that she felt very uncomfortable during these incidents and that (T) would become angry when she refused to let him examine her.
T described an incident in 2001 when K, then aged 11, came to him saying she had a sore on her left breast. T stated that he was aware that his daughter was uncomfortable about showing it to him but after discussion she lifted her shirt and he observed what appeared to be a boil or infected pimple on the top of her breast. He advised her to give it a squeeze and to put some savlon cream on it; he then gave her a bandaid to cover it with.
Departmental records indicate that at the time both T and his daughter stated that he had squeezed it and put the bandaid on it. T was very clear that had his daughter been unwilling for him to attend to this matter, he would not have pursued it but would find another way around it. He was advised by investigating officers that it would have been more appropriate to get someone else, for example his girl friend, to attend to this.
In relation to “nude nights” T stated that he did not know where that term came from as the family had never used it. However he knew what it referred to. Prior to separation from his wife he said there were occasions when they would turn off the TV, his wife would spread a blanket on the floor and gather together hair brushes, hair ties and massage oil and after showers they would all sit naked and brush each other’s hair, give the odd massage and talk. He described them as, warm family occasions, great bonding nights, there was no fighting or arguing, it was always nice; afterwards they all put on pyjamas and went to bed. This had not occurred since his oldest child was about nine and not since the marriage ended. At that time his daughters were aged approximately 6, 7, 9 and 11 years.
The Police record of interview indicates that he was advised by the investigating officers that this was inappropriate behaviour and should it continue he may be charged.
In relation to accusations that he would line the girls up naked and require them to twirl around in order to inspect them for sores and to check their development T denies that this was the case. He said, I have never randomly or regularly examined the children and found them to have no sores. The only time I have ever looked at the children in any sought of a check, is if I have noticed something or if they came to me, for example the pimple on the breast.
Nine months after these interviews were conducted; L and K were interviewed following allegations that L was afraid to go home (to her mother’s). This related to fear of her paternal uncle who was spending time with the family although her mother denied having a relationship with him. Some information obtained during these interviews is as follows:
·both girls said they enjoyed going to stay with her father every second weekend;
·L said when Dad gets angry he tells them to go away so he can cool off. He says “that was the wrong thing to do “ or something similar; Mum sends them to their room;
·L does not like hearing her mother say things about her Dad, such as he owes her money …
T denied allegations of drug use or selling drugs. During the hearing he stated that he had briefly, only ever a few times, taken amphetamines during a difficult time in his marriage and when his wife was taking them; he never developed a habit and expressed the view he should never have taken them. His attitude to drugs is “say no”.
T stated that he has had pictures of naked ladies of a soft porn nature on his computer, and expressed the view that if you have a computer ‘you are going to get them’ whether you want them or not. He denied subscribing to anything like that and stated to his knowledge none of his children had ever seen them.
T described a game/song the children made up which involved rhythmic beating (drum like) on each other’s chest. He said they had fun with it and at times he joined in; it was harmless but he understood someone sighting them playing may misinterpret the behaviour.
At the time these matters were investigated T indicated his belief that the allegations were malicious in nature and related to the custody dispute and the fact that his ex-wife’s partner hated him. He stated that the children would talk to him about allegations against him which were being expressed by their mother and her partner.
The written record of the assessment of this matter noted that, T appears to be unable to recognise his actions are inappropriate and make the children feel uncomfortable. He further appears to have a limited understanding surrounding protective behaviours, and alternative courses of action if the children require medical attention.
T informed the Tribunal that he made it clear to the investigating officers that he did not agree with them. He indicated that he would not relieve himself of all responsibility, and asserted that viewing the breast is not a sexual act. He felt the police wanted him to say he did the wrong thing; he could not do that because he knew the allegations to be false.
Later in 2002 information was recorded which related to an incident at the airport when both parents turned up to collect K. She apparently indicated she wanted to go with her mother but T was insisting that she should go with him. Because an argument ensued security officers intervened and it was suggested she go with her mother and they sort out the access arrangements in the morning. The Department took no action on this information.
In 2006 information received is summarised as follows:
·S is currently residing with her father and does not want to return to her mother. There is reason to believe the father is “poisoning her mind”. She does not engage with her siblings, is playful and has become a different child. She sleeps in the bed with her father and twelve months ago she said she had seen an ear ring in her father’s penis.
·The father has a gambling problem and takes the children to the pub when playing pool.
·J does not wish to stay with her father because he does not have healthy food. 12 months ago she said her father got into the shower with her.
·The girls wear a bra to bed when at their fathers. It was suggested that this may be to prevent their father touching their boobs.
After this information was recorded Departmental officers spoke to the school. They were informed that J and S “are gorgeous kids and she does not have any concerns about their daily presentation”. The school was aware that there were family issues. Accordingly a decision was made to simply document a case note, i.e. take no further action at that point.
In July 2007, further information was recorded relating to S sleeping in the same bed as her father while both naked and walking around the house naked; it was alleged that S was an unhappy child. At that time S had chosen to live with her father since December 2005, following allegations that her mother’s then partner had sexually approached her. A further investigation was conducted.
When interviewed, S (aged thirteen years) spoke positively about her life with her father. She said she had her own room, she added that they usually all sleep in Dad’s room in the summer because it is the only one with an air conditioner. Then she has a mattress on the floor; she never sleeps naked and described the clothes L and her Dad wear to bed. Records indicate that she said:
Two nights ago dad left the door open to get changed. He’s done it all his and my life. He will close it if we have visitors ... I will talk to him at the door if I need to. Yesterday was the last time I saw his privates. He has never gone into my room while getting changed or when L is getting changed.
When L, aged 16, was interviewed she interrupted the interview when they began talking about private parts saying, no nothing happens, I’ve been through this before. I wear shorts and a t-shirt to bed. Or long pants and a jumper in winter. No one ever walks around the house naked. She also stated that nothing has ever happened sexually to me and that her father never slept in anyone else’s room.
T denied all the allegations. He described that at times it was musical beds depending on who was there; one room was currently under renovation. He acknowledged not covering himself up as much as other people may, but said he never intentionally exposed himself to his children saying they would think I am stupid. He said there is a TV in his room and he and Sarah have fallen asleep on the bed while watching.
During the hearing T spoke about the fact that he is quite open about nakedness within the family. He said it was not uncommon for him to be in the shower and if one of the girls wanted to talk to him they may come and do so. The shower curtain would be closed so he was not visible.
He spoke of an incident when 10 year old L jumped in the shower with him but said she would not do it now because she grew up. He denied entering the shower with his daughters.
K aged 21 provided a written statement and gave oral evidence to the Tribunal. She presented as an articulate young woman who was confident and at ease with her father. She wrote:
For all of my life so far my father and I have had the best relationship a father and daughter could have. My father has never sexually assaulted me or any other of my sisters, friends or other relatives.
… I felt intimidated by (mother’s boyfriend) and generally done what he said to avoid conflict.
… When accusations were made about my father being a paedophile and one particular event had been raised in the interview with police and a pimple I had on my left breast. At this time during the interview I felt intimidated and scared that if I said things that (mother’s boyfriend) and Mum would not agree with that I would be in trouble.
In oral evidence K stated that:
·she is more able to talk to her father about issues than her mother;
·she and her mother get along well but she is just not very reasonable or approachable, Dad understands, I can tell Dad anything;
·she expressed enthusiasm for her father’s plan to be a foster parent.
L aged 20, provided a written statement and confidently gave oral evidence to the Tribunal. She wrote:
In my life I have never been sexually abused or molested by my father nor have I ever witnessed my father sexually abuse or molest any of my siblings friends or relatives.
My sisters and I lived with (mother’s boyfriend) and my mother on a shared arrangement that I believe was passed down by the courts.
… It was under these circumstances that the Child Safety Department came around and asked us whether or not my father had sexually abused or molested us. My answers given at this time are very hazy and I cannot remember what was said to the officers at this time. I felt like there was an obligation to dislike and say nasty things about my father.
… In my years growing up I have spoken to Child Safety Officers on numerous occasions, due to false allegations stemmed from lies told at the time of my parents’ divorce.

In oral evidence L confirmed that she had never been asked to line up naked to be inspected by her father. She did recall this being talked about at her mother’s house. She emphasised that all the allegations which were made about her Dad over the years were lies.
She expressed the view that she was very lucky to be brought up by her father saying we were always able to sit down and talk about anything, he taught us morals and honesty. She said, I would never lie to my Dad, if you told the truth you would not get into trouble. She never wanted to disappoint her father and was always encouraged to achieve, he raised us not to get into trouble. She never ever felt at risk of harm in her father’s care; they were never “smacked or flogged”. She was clear that all the allegations made over the years are lies.
Eileen Shepherd provided a written statement confirming that she had prepared an initial approval assessment report in relation to T’s application to become a foster parent. Her report was provided to the Tribunal and recommended his approval as a foster carer without conditions.

Submission of the applicant

T acknowledged that the evidence placed before the Tribunal was conflicting and potentially damming.
He cited the evidence of his daughters which refutes the suggestion that any inappropriate attention was ever directed towards them by him. He questioned whether this means that they do not remember the events that happened when they were children, or whether they were victims of a manipulated situation. He asserts that the allegations positively assisted the mother’s application to the Family Court which was active at the time.
He emphasised that both daughters are adamant they did not suffer any abuse at his hand and testified to the deep and enduring bond they have with him. Both stated they have a good relationship with their mother but this does not extend to the same deep trust that they describe as having with him.
Child Safety’s (the Department) finding that his daughters had suffered emotional and sexual harm is not supported by any evidence available today. Both daughters gave evidence in different ways that prior to interviews they were subjected to inappropriate comments made repeatedly to them by their mother and her partner. These were aimed at promoting a ‘false take’ on matters that they were questioned about. Both said that their mother’s partner was violent and unpredictable.
T cited instances where both police and Child Safety made mistakes in the process. He asserted that this raised suspicion that other aspects of the case made against him may not have been assessed properly.
He stressed that he is not the person that is being defined by the many allegations which have been made against him. In relation to Ms Shepherd’s statement that he was opinionated and set in his ways he acknowledged that he is sometimes opinionated but does not view this as a negative trait. He has taught his children that it is important that if they feel strongly about an issue they should make their position known. However it is not OK to force an opinion onto anybody and it is important to be able to change if reason comes along to do so. He cited his successful business activities and his ability to suddenly take on the care of six children alone, as proof of his potential to readily adapt to a new situation.
He claimed that he is a dynamic person and capable of taking on many challenges. He has a track record of success and does not take on the challenges of becoming a foster parent lightly.

Submission of Child Safety

The Tribunal now has the heard evidence from two of the children who have said that they have never been harmed or felt at risk by T, but do not have the benefit of talking to the children at that point in time to be satisfied they have the full context, or to weight the role of the mother at that time.
If the Tribunal were of a mind to grant a certificate they must be satisfied that T meets the suitability definition and the criteria in s 135(1)(a) of the CPA; must be satisfied s 122(3) of the Act; must meet the standards as contained s 122 of the Act.
T has said himself that he is a boisterous extroverted personality. Section 122(3) of the Act states the carer must act in accordance with the Chief Executive’s directives. The Tribunal needs to consider whether T would be able to change his behaviour and take direction from the Department. Ms Shepherd questioned his ability to follow directions; she also had concerns that he may not be able to contain his response to natural parents. She considered this was not a characteristic he would easily change.
The Tribunal must apply the definition of “suitable person” as defined in the Schedule 9 of the Child Protection Regulation in that the person does not pose a risk to the child’s safety. Even if the Tribunal is satisfied that T demonstrated no harm to his children, the Tribunal still needs to decide if those events or any other evidence heard, would pose any risk to a child as a general concept as the definition of “suitable person refers to a specific group of children that have been harmed.
If satisfied that T meets the criteria in s 135(1)(a), consideration should also be given to s 126 of the Act which provides for the placing of conditions on a certificate.
The issuing of a certificate must be conditional on T making a successful application for a Blue Card.

Discussion of evidence

The Statement of Reasons provided by the Department described the investigation carried out in 2000 as being the key notification; the finding of substantiated inappropriate sexual touching and emotional/ psychological harm is the only substantiated notification.
This investigation and assessment occurred at a time when the marital separation was relatively recent and at a time when the children’s mother had decided she wished to have the children in her care and had taken court action.
It is notable that the record of investigation and assessment includes no analysis of this context.
In addition, the relationship between nudity and sexual behaviour is a recurring theme in the history of this matter and requires further examination. For example, the Department’s assessment following an investigation in 2007 records:
T presents as an extroverted father with unclear boundaries in relation to appropriate displays of self and sexuality. He openly stated that he will be naked at times where his daughters are able to see him and that ‘no subject is taboo’. In a prior investigation in 2001 there was a similar pattern of sexual behaviour …
The Tribunal has approached this from the understanding that there is a wide variety of views and practices within families in the Australian community in relation to nudity in the home. This ranges from families who always cover up to families who may never see it necessary to do so. It is probable that most families fall somewhere in the middle and as the children get older they automatically adjust their behaviour as they see the need. Documented information provided to the Tribunal in relation to this matter, repeatedly refers to nudity as sexual behaviour. Nudity alone is not usually regarded as sexual behaviour.
The Department’s Statement of Reasons contained the following sentence:
In considering T’s liberal attitude to nudity, while not of and by itself a child protection concern could result in risk of sexual abuse and or risk of emotional harm as a result of being exposed to adult nudity.
The Tribunal accepts that in a situation where sexual abuse was identified, steps to avoid precipitators should be implemented. However there is no evidence to support the view that exposure to a nude adult, poses a risk of sexual or emotional harm to children.
In a 1995 review of the literature, Paul Okami concluded that there was no reliable evidence linking exposure to parental nudity to any negative effect. Three years later, his team finished an 18-year longitudinal study that showed that, if anything, such exposure was associated with slight beneficial effects, particularly for boys. Okami, P., Olmstead, R., Abramson, P. & Pendleton, L. (1998).
T said he is “not paranoid about being naked sometimes I wonder why people are so worried about it; I could go and sit on a nudist beach”. The fact that the community tolerates nudist groups is equally relevant.
It should be emphasised that T’s attitude to nudity is considered by the Tribunal to be within normal parameters. He is very clear that he does not seek to impose nudity on others, nor does he deliberately expose himself to others. He stated that during the time he cared for his ex-wife’s nephew and niece he never saw them naked. He also understood and accepted that as his daughters matured, they covered up.
The description given on several occasions of the family (where all children who were under ten) and his wife being naked together for a period of time in what T describes as “warm family occasions”, contain no allegations of overt sexual behaviour.
The records of the response to the treatment of a pimple on the upper breast of his then eleven year old daughter were conflicting in relation to who applied the cream and bandaid. The Tribunal considers that whichever account is correct, there is nothing inappropriate about this, ie this cannot be considered sexual interference or inappropriate viewing or touching. It was a legitimate response of a father caring for his daughter.
T has vigorously denied allegations that he routinely lined up the girls naked to examine them for sores. The Tribunal is of the view that should this be true, it does not justify a finding of substantiated sexual abuse. It would be regarded as behaviour which is less than desirable and perhaps over controlling. An overview of the information related to T’s care of his daughters over time, does not point to a tendency for such controlling undesirable behaviour.
These incidents were discussed extensively in the hearing. It was apparent that T was very clear about his attitude to nudity and his right to parent in his way and he argued with the investigators. He is clear that he felt the investigators were trying to get him to agree that he had done the wrong thing; he was not going to do that because he knew he had not. He simply did not agree with the investigators.
It is in this context that he was judged to be, unable to recognise his actions are inappropriate and that they make the children feel uncomfortable. Subsequently he was described as “showing no insight into his behaviour”. This view of T was repeated in other documents. In August 2007 under a heading “risk factors” the following was recorded:
(T) presents as an extroverted father with unclear boundaries in relation to appropriate displays of self and sexuality. He openly stated that he will be naked at times where his daughters are able to see him and that “no subject is taboo” In a prior investigation in 2001 there was a similar pattern of sexual behaviour whereby (T) was minimising inappropriate touching by himself to his daughters.
The Tribunal finds that T’s presentation during the hearing as well as recorded information, indicates that he shows considerable insight into his own behaviour and motivation, as well as concern and understanding for the wellbeing of his daughters. In addition, he articulates very clear and acceptable boundaries to nudity within the family. Of particular concern is the above reference to sexual behaviour and inappropriate touching. As previously discussed this is not supported by the evidence.
The taped conversations of the interviews with the girls indicate that they confirmed allegations that they were lined up and inspected and that they felt uncomfortable about this.
One accepted way of assessing the veracity of material, is to consider the amount of detail which is able to be provided. The police record of these interviews indicates that both K and L were vague about details and reluctant to provide information in relation to these incidents. The Tribunal listened to the tapes and did not have confidence that the statements of the girls should be simply accepted without further exploration of their situation.
Both of T’s oldest girls testified during the hearing that they recalled feeling under pressure to say nasty things about their father and that the allegations were made up by their mother and her partner.
They also clearly indicated that while they had a good relationship with their mother, it was their father who they depended upon for support and understanding.
The result of this one substantiated assessment and the finding is repeated in various ways in subsequent documents. T expressed the view that the investigations were approached from the position that he had caused his daughters sexual harm and that was the finding. The evidence before the Tribunal supports this.
The Tribunal has carefully considered the Department’s submission that at this stage we do not have the benefit of talking to the children at that point in time to be satisfied they have the full context, or to weight the role of the mother at that time and acknowledge the limitations that poses.
The benefit of an overview of events over a period of ten years, the evidence provided by T’s adult daughters, as well as his personal presentation at the hearing provides a balance to this deficit.
T’s personal presentation placed beside the information contained in the documentation of investigation and assessment is remarkably consistent.
The Tribunal does have some information about the mother. Evidence showed that when she left the marriage she left her six children in the care of T with a letter indicating that she knew they would be in good hands. T also advised the Tribunal that she allows her youngest daughter by another relationship, to visit at T’s home and to treat him like a father at times.
The Tribunal is also mindful of the reasons why his daughters may wish to support their father by being less than truthful.
Both daughters were impressive witnesses. They presented as strong individuals who had a comfortable and healthy relationship with their father. In spite of the times when they made allegations against their father, the same documented evidence, indicates that they were happy to spend time with their father and they nominated him as a trusted person.
The Tribunal places little importance on the incident at the Airport. It occurred at a time when the custody and access arrangements were still relatively new, a situation where tension and frustration is high. There is no other evidence that T ignores his daughters’ needs or is unreasonably angry.
T was clearly concerned about the plight of his ex-wife’s nephew and niece. He appropriately sought advice when they were first left with him, and again when they were suddenly removed from his care by their mother and he was legitimately concerned for their well-being.
The Department also questions whether T’s personality characteristics would make it difficult for him to work under the direction of the Department as a foster carer as prescribed in section 122(3) of the Act. They also question whether he would be able to change his behaviour and able to work appropriately with natural parents. These issues were raised by Eileen Shepard as part of her assessment but she recommended his approval in spite of them.
While T presented as very clear about his own view of the world and his opinions, he did not present as bigoted or inflexible. He articulated sound standards for his behaviour. He may well pose some challenges to Departmental staff in working with him as a foster carer; however it is considered that these same characteristics also have the potential to make a very good carer for some children.
During the hearing T displayed a sound understanding of what was required as a carer and articulated a willingness to learn. It is noted that he completed the training and was recommended after a comprehensive assessment.
Except for the fact that Ms Shepherd did not have the benefit of assessing the child protection history, the Tribunal has no reason to question Ms Shepherd’s assessment.
The Tribunal process does not constitute a comprehensive assessment of suitability to be a foster carer. The particular matters set out in the Statement of Reasons have been the Tribunal’s focus, specifically whether the ‘suitable person’ criteria as outlined in Schedule 9 of the Child Protection Regulation 2000 is met.
This process has been most concerned with regulation (2)(a): does not pose a risk to the child’s safety. It is for the above reasons that T is considered to be well able to meet this criteria. The Tribunal accepts the foster care assessment and training processes previously undertaken by the Department as meeting the requirements of regulations (2)(b), (c), and (d). It is also noted that within the limitations of the Tribunal hearing process, the Tribunal formed a favourable view of T’s ability to meet these criteria.
The process of T’s application to become a foster carer is an unusual one and poses some dilemma about how the process should proceed at this point.
T must obtain a Blue Card prior to being issued with a certificate of approval to be a foster carer. He has held a Blue Card in the past but it has now expired.
Accordingly the Tribunal makes the following orders:
(1)The decision of 27 August 2010 that T is not a “suitable person” to be a foster carer is set aside.
(2)Subject to T obtaining a Blue Card, and prior to issuing a certificate of approval, the Department should review all information available to them, including information obtained during the Tribunal process and contained in this decision. They must then make their own decision about whether or not to place conditions on T’s Certificate of Approval.