TDM & TWN v Department of Communities (Child Safety Services)

[2011] QCAT 59

CITATION:		TDM & TWN v Department of Communities (Child Safety Services) [2011] QCAT 59
PARTIES:	TDM and TWN
v
Department of Communities (Child Safety Services)

APPLICATION NUMBER:   CML003-11

MATTER TYPE: Childrens matters

HEARING DATE:     11 February 2011

HEARD AT:  Brisbane

DECISION OF: Clare Endicott, Senior Member

DELIVERED ON: 15 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: The application is dismissed.

CATCHWORDS : 

Where grandchildren removed from home of grandparents – Where grandparents were provisionally approved carers – Where this approval lapsed – Where grandparents not persons entitled to apply for a review

Child Protection Act 1999 sections 82, 89, 91, 136
Queensland Civil and Administrative Tribunal Act 2009 section 47

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. On 5 January 2011 the Queensland Civil and Administrative Tribunal received an application from TDM and TWN in respect of child A and child B, their grandchildren.

1. The application sought a Tribunal review of a decision of the Department of Communities (Child Safety Services) made on 24 December 2010 to remove the children from their care.

1. TDM and TWN were written to on 6 December 2010 by the Manager of the Stones Corner Child Safety Service Centre (“the Manager”). In this letter they were advised that the decision was taken to remove the children from their care under section 89 of the Child Protection Act 1999 (the Act) for the period of an assessment of a matter of concern. The Manager advised them that they were entitled to seek a review of the decision to remove the children under section 91 of the Act.

1. The Tribunal has some doubt about the actual date of the letter because it refers to events on 24 December 2010.  A further letter was sent to TDM and TWN on 24 December 2010 advising them of the Department’s concerns which lead to the removal of the children.

1. According to the applicants, the children had been in their care since they were babies.  The applicants provided the Tribunal with two authorities to care for a child under the Act, these authorities noting that the carers were TDM and TWN and the authority to care was in relation to both children.

1. The Department, through its Court Services Unit, provided a submission to the Tribunal on 21 January 2011 in relation to the applications. These submissions note that under section 136(c) of the Act they were provisionally approved as carers for both of the children on 17 September 2010. Certificates gave carer approval to 16 November 2010. A subsequent certificate of approval for both children was given on 16 November 2010 to expire on 16 December 2010. TDM and TWN have made applications for kinship carer approval and these are currently being determined. They are not yet approved as kinship carers, and are no longer provisionally approved carers, their last approval lapsing on 16 December 2010.

1. The submissions of the Department are that TDM and TWN are excluded as people entitled to make an application for the review of the decision to remove the children. Schedule 2 of the Act outlines the decisions of the Department which are reviewable by the Tribunal and outlines who may apply. In relation to the removal of a child from the care of the child’s carer, the aggrieved person entitled to apply to have a decision reviewed must be a carer. Carer is defined in schedule 3 of the Act as the entity in whose care the child has been placed under section 82(1) of the Act. Section 82(1) outlines with whom the Chief Executive may place the child in the care of. This includes an approved kinship carer and an approved foster carer, an entity conducting a department care service or a licensee or a provisionally approved carer for the child.

1. Section 91 provides that the child’s carer is entitled to have the decision to remove the child reviewed by the Tribunal if the carer is not a provisionally approved carer. In other words a provisionally approved carer is not entitled to have a decision to remove the child reviewed by the Tribunal. In any event the provisional approved status of the applicants expired on 16 December 2010. At the time the children were removed on 24 December 2010 they were not approved carers. The letter from the Manager erroneously advised the applicants that they are entitled to seek a review of the decision to remove the children. It is clear from the analysis of the legislation given above that TDM and TWN are not entitled to apply for a review.

1. The Department of Communities in its submission asked the Tribunal to dismiss the application on the basis that the applicants are not people entitled to seek a review and accordingly under section 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the application lacks substance.

[10]  The applicants were advised of the Department’s submission by letter dated 25 January 2011.  The applicants were given an opportunity to respond to these submissions by 4pm on 9 February 2011.  No submission was received from the applicants.

[11] The Tribunal is satisfied that the application should be dismissed under section 47(1)(b) of the QCAT Act on the basis that the application lacks substance because the grandparents were not entitled under the legislation to have a decision to remove the children from their care reviewed by the Tribunal.