WCR and WL v Department of Communities, Child Safety and Disability Services - [2014] QCAT 647

CITATION:

WCR and WL v Department of Communities, Child Safety and Disability Services [2014] QCAT 647

PARTIES:	WCR and WL (Applicants)
v
Department of Communities, Child Safety and Disability Services (Respondent)

APPLICATION NUMBER:

CML096–13

MATTER TYPE:

Childrens matters

HEARING DATE:

11 and 12 September 2014 and written submissions

HEARD AT:

Cairns

DECISION OF:

Member Johnston
Member Clifford
Member Deane

DELIVERED ON:

9 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of 3 May 2013 that WCR and WL are not ‘suitable persons’ to be appointed as foster carers is confirmed.

CATCHWORDS:

Foster care approval – risk assessment – corporal punishment – investigation process

NON-PUBLICATION – where interests of justice to withhold name of daughter and grandchildren from publication

APPEARANCES:

APPLICANTS:

WCR and WL

RESPONDENT:

Department of Communities, Child Safety and Disability Services

REPRESENTATIVES:

APPLICANTS:

Mr King, Solictor, Bottoms English Solicitors

RESPONDENT:

Self-represented

REASONS FOR DECISION
Background

This matter involves a review of a decision of the Department of Communities, Child Safety and Disability Services (the Department) that denied the Applicants authority to act as foster carers.
The Department by letter dated 3 May 2013 determined that the Applicants were not “suitable persons” for the purposes of s 135(1)(a)(iv) of the Child Protection Act 1999 (the Act) and refused their application.
An application to review that decision is now before the Tribunal.

What were the issues behind the Department’s decision?

Ms PC the Manager of the Child Safety Service Centre, the delegated decision maker, wrote to the Applicants raising the following issues:
a)the ability of the applicants to meet the Statement of Standards due to the use of corporal punishment (s 135(1)(iv));
b)the ability of the applicants to employ alternative strategies against using physical strategies dealing with challenging child related circumstances in the future;
c)the ability of the applicants to work with the Department and other agencies to achieve positive outcomes for children having regard to their best interests (s 135(1)(vi)); and
d)the continued making of claims about individual officers’ conduct and serious alleged failures on the part of the Department.
The Applicants in the Review Application raise (as best as the Tribunal can interpret) the following issues:
a)that Mrs WCR acted in self-defence when she struck her grandson with an egg-flip;
b)that the applicants need professional help dealing with a disturbed child;
c)the substantiated matter was a failure by the Department to support the applicants; and
d)the applicants were cruelly victimised and it was necessary for Mrs WCR to write to other officers within the Department.
The parties in relation to the Review have raised these issues.
Mrs WCR sets out on pages 119 and 120 of her manuscript version 2 a range of outcomes that they are seeking. Mr King their legal representative told the Tribunal that his clients were only seeking authority to act as foster carers.

The use of corporal punishment (s 135(1)(iv) and s 122 of the Act)

Section 122 of the Act sets out the Statement of Standards required of persons in relation to them in acting as foster carers.
Section 122(1)(g) states that a child will receive positive guidance when required to help him or her change inappropriate behaviour and section 122(2) provides that techniques for managing the child’s behaviour must not include corporal punishment or punishment that humiliates, frightens threatens child in a particular way that is likely to cause emotional harm.
There were two issues to do with corporal punishment. The first was the incident of 26 September 2011 (the substantiated Matter of Concern). The second was Mrs WCR's attitude to corporate punishment generally.
There were a number of different statements made regarding the circumstances surrounding the circumstances of 26 September 2011. There was an altercation between Mrs WCR and her grandson AB that allegedly resulted in Mrs WCR stumbling, then tripping over a chair and falling to the ground. Mrs WCR then grabbed an egg-flip and she reached around and struck the child on his buttocks a number of times.
The Applicants in their submissions confirmed that Mrs WCR had placed her hands under his chin in order to direct him. The child clearly responded to this contact in a negative way.
The Department took the view that Mrs WCR's actions were in breach of the Statement of Standards. The Standards prohibit the use of corporal punishment. Ms R determined that Mrs WCR's actions in reaching for an egg-flip and reaching around AB to hit him on the buttocks was most likely an intentional behaviour rather than one that was in self-protection. Mrs WCR stated at the time that she had no intention to hurt AB just to shock him a bit. This is certainly consistent with Mrs WCR's philosophy in terms of the use of physical discipline.
The fact that the Department has substantiated the Matter of Concern has caused Mrs WCR great angst and in the Application she still uses the expression ‘acting in self- defence’.
PL in her oral evidence told the Tribunal that she had heard Mr WL and Mrs WCR's accounts of what had happened. She understands that Mrs WCR thinks that she was acting in self-defence. Ms PL told the Tribunal that Mrs WCR by kicking out; lashing out, with her arms hitting the child, hitting the child with the egg-flip still breached the Standards of Care.
Mrs WCR told the Tribunal that she had subsequently learnt different strategies for dealing with challenging behaviour. She also acknowledged that she in hindsight might have approached the situation with her grandchild differently. Mrs WCR however was adamant that her actions were justified in the circumstances.
The second issue is in relation to Mrs WCR's attitude to corporal punishment.
Mrs WCR told the Tribunal that she would not use corporal punishment on a child under the care (of the Department). However in the document “The Little Heartache in Life” (the manuscript version 2 ) she says on page 114:
Where did common sense and practicality go when traditional methods of child rearing were demonised without replacing them with any realistic alternatives? We’d like to ask all the overzealous do-gooders and human rights activists, just look at what you have created. Ask yourselves is it a safer world and are our children better protected by giving in to them all the time and not teaching them to think about what they are doing and how it might hurt others? Isn't it time that schools and parents are given back their rights? Even if it means a tap on the bottom, nothing too drastic, isn't it better for the child to know his or her boundaries rather than not to know them at all? Should it not be deemed in the best interests of the child to be directed to choose the right path to go down rather than the wrong one? Experiments show shock is the quickest way to put something into long-term memory. Shouldn’t we all be correcting any children behaving in a way which will lead to long-term grief?
Please do not get me wrong. I'm not saying turn a blind eye to children who are being extremely physically abused, like that case of the boy in a coma. That is not what I'm advocating. That is abuse, not discipline. What I ask is that people should stop crucifying parents who occasionally tap a child on the buttocks with a hand or wooden spoon, not cause any serious harm but to let them know important boundary has been reached. The parents do this because they actually love them and are trying to protect them from serious harm. Sensible discipline is a form of love. Some children just don't respond to “tut tutting”. Some children do not stop immediately when told. Mostrequire, at some point in their growth and maturity, more hands on persuasion to think about the consequences of their actions and words. Weare all different. What methods work on one person might not work on another. At the end of the day, if you have tried everything else that you find you have to resort to that that wonderful tiny tap, then so be it. Given at the right time for the right reasons, it is most effective, with long-term benefits. Under these circumstances, it rarely has to be repeated. The possibility of a repeat is usually enough to halt the behaviour. In most instances, if boundaries are set early, there is little need for continuing stern corrections.
WCR on page 115 states that the Department is unable to see the difference between discipline and beating, and that the Department is inappropriately judging her use of discipline.
The Tribunal notes that these are WCR's words. These are her closely held beliefs. This is best described as an “authoritarian” view of raising children. WCR is critical in the manuscripts of the Department for not understanding her view of bringing up children.
WCR in her evidence acknowledged the occasional use of physical discipline on her children and the use of threats to correct her grandchildren's behaviour. WCR describes a stick she said she had labelled as the ‘educator’ and WCR described how she would ask her grandchildren, when they were naughty if they would ‘like to be educated?’.
The Tribunal has a variety of documents that reflect disclosures by WCR's grandchildren, regarding WCR's use of physical punishment at the time.
A Social Assessment Report in relation to WS and her children dated 7 June 2011 documents statements by AB as follows:
he described his grandparents as nice. He stated he has a motorbike at their house and wants to go over there so he can ride it. He stated that his grandmother has previously “flogged us with a stick”. He reported that this occurred when they disobeyed her and ran away from her. When she caught up with him and CD, she used a branch of a tree to get them. Despite this AB reported that he feels safe when he is with them “because they get told not to do it again”.
The Department for the purpose of an investigation undertook an assessment about WS care of her children. AB was interviewed at school on 16 March 2011. AB is recorded as saying to a Child Safety Officer SR:
his grandmother does the wrong thing and his mother is angry about it. It is sort of good visiting his grandmother. He likes his grandfather and hangs around him more. His grandmother beats him. She grabs a stick and hits him on the bottom on his legs. If he had a choice he would stay at his grandmother's; his grandmother's is “sort of safe”.
AD’s Kinship Carer Assessment Report records that CD had disclosed that WCR had hit him with a stick.
The Department's Child Placement Concern Report dated 5 September 2011 details disclosures by both CD and AB; more specifically CD’s disclosure that WL and WCR still had a stick with which she frightened the children.
WCR in the manuscript defends her actions by saying ‘our home, our rules’. WCR's oral evidence and the manuscripts show that she has a personal belief about the benefits of physical discipline. She conveyed her view that there were occasions when a quick smack was preferable to continuing to talk with a child about her behaviour. WCR referenced the benefits of smacking by use of the example of the child touching a wood stove.
The Tribunal questioned WCR as to why her first response would not have been to prevent a child access to the wood stove. WCR was unable to provide any specific explanation as to why this would not be her response except to emphasise that if the child continues to go to the stove a smack would be preferable to the child incurring some permanent injury.
AB disclosed that WCR had hit him with an egg-flip during the incident referred to on 26 September 2011.
The Department makes the point that both of WCR's manuscripts were written by her subsequent to her completion of foster care training programs. The Tribunal heard WCR’s evidence that she had developed better insights into the use of physical discipline and its impact on children. These insights are not reflected in the manuscripts.
The Department submits that such training logically should also have increased WCR's understanding of why officers of the Respondent Department are required to adopt certain principles and standards in relation to physical discipline and its role in the care of children.
The Tribunal notes that on pages 113 and 114 of the manuscript (2) WCR not only repeats the views of advocacy of physical discipline but also expands on her message. When questioned about the manuscript WCR explained that they were generational; they reflected the way she had been raised and how she had raised her children. When specifically questioned about the place of physical discipline in today's society WCR stated that she still felt that it might be necessary to enforce the message.
There is also evidence before the Tribunal that suggests that WCR has a tendency towards “fight” or unregulated emotional responses when she is faced with threat, challenging situations or even when there may simply be a different perspective. On page 58 of her manuscript 2 WCR records, that she attended her daughter’s place and called out to her daughter’s then partner, yelling obscenities and challenging him to come out and face her. This is an example of an incident where WCR deliberately located her daughter’s and then partner’s address to seek out confrontation, about an incident concerning one of her grandchildren sometime earlier.
WCR's own evidence of banging together the heads of her daughter and boyfriend is an example of someone resorting to actual physical violence to address behaviour. WCR justified her response, indicating that it was in the children's best interests that the conflicts cease and it was less distressing than the option of removing them from their parents.
The Tribunal accepts the evidence that WCR's responses to situations of behavioural crisis not only suggest that she is more likely to enact a fight response, it raises concern regarding her capacity to role model the children appropriate ways of managing conflict in responding to inappropriate behaviour of adults.
The Tribunal is satisfied that the use of physical discipline to cause ‘shock’ to use WCR's own words is not acceptable, and is harmful to children and not in their best interests. This style of discipline is not in keeping with the Standards of Care required of carers.
The Tribunal is unable to reconcile WCR's philosophy of physical discipline as expressed in the manuscript that shows little insight into the foster care training she received with her oral evidence where she effectively stated that she would not use physical discipline or threats of physical discipline if a foster child were placed in her care.
The Tribunal accepts the submission of the Department that WCR's behaviour and her expressed views in relation to corporal punishment raise concerns about her ability to comply with the Statement of Standards as required of carers.
This is not a review of the Department’s findings in the substantiated Matter of Concern. However, the incident is relevant to our review of the decision to deny the Applicants’ authority to act as foster carers. The Tribunal also notes that the evidence of Ms PL that, WCR's actions on 26 September 2011 did constitute a breach of the Standards of Care required of carers.

Ability to work with the Department

When WCR talks of being dealt ‘cruelly’, she is highlighting the absence of trust that exists between the Applicants and the Department. She uses the word ‘vendetta’ on page 113; uses the expression ‘shooting the messenger’; and the ‘gross misjustice’ that has occurred in relation to her dealings with the Department. The evidence is that WCR has railed against the Department. The introduction of the manuscript refers to the Applicant being ‘cruelly victimised by the Department’. She acknowledges in the manuscript ‘persons in this book may be offended by the portrayal of the way various officials have conducted themselves’.
WCR confirmed that she had an explosive temperament.
Ms PL told the Tribunal that WCR had problems with her style of communication. She is confrontational and antagonistic and this style creates barriers to communication. There is evidence in the Departmental files of a number of confrontational settings. The risk of her communication style is that she will not get an appropriate response from the Department. Ms PL told the Tribunal that it was not her role to assist WCR change her style of communication. Her role was to collect information and provide a report. She did however hope that her material would cause WCR to think about her style of communication. When asked by the Tribunal whether WCR had made changes to her communication style to enable her to appropriately engage with the Department Ms PL said that WCR would have to demonstrate that she had acquired the skills and that there was no evidence at this point of WCR demonstrating a new style. The clear inference from Ms PL’s evidence was that there was a significant problem with WCR's communication with the Department. She told WCR that if she felt bad or angry about something that she needed to walk away and come back later when she had cooled down and decided if what she wanted to say was appropriate.
Ms PC gave evidence that the Department would hold meetings with the Applicants and believes that the issues had been resolved only to receive an abusive call or letter raising an issue that could have been easily dealt with at the meeting with everyone around the table.
The Tribunal accepts the evidence of Ms PL and Ms PC about the nature of WCR's communication style and WCR's own admissions that she has an ‘explosive temper when frustrated’. Her use of the terms ‘cruel’ suggests a highly emotional response to the actions of the Department.
The Respondent submits that the Tribunal cannot be completely satisfied that WCR is able to engage with the Department in ways that enable her to fulfil this requirement. The Tribunal has before it both versions of WCR's manuscript both of which contained numerous negative references to the Department and suggests a long held deep resentment regarding injustices with respect to her daughter and her grandchildren.
The Applicants concede that they have an extensive history with the Department, particularly concerning their daughter when she was a child, and later when their grandchildren were in their care.
The Applicants have now moved to Townsville. WCR talks about the negative stigma with the Cairns and far North Queensland Office.
The Tribunal finds that the degree of mistrust between the parties has affected communication between the Applicants and the Department. A significant factor in this breakdown of trust has been the emotional and confrontational approach by WCR to the Department.

The continued use of the complaints scheme

WCR's counsel rightly insisted on the rights of his clients to make complaints without fear of prejudice. The Tribunal does not make any finding in relation to the complaints made by WL and WCR against the Department and does not seek to apportion blame. The Tribunal only notes that having exhausted their complaint rights WL and WCR have pursued complaints outside the internal and external review processes. This involves making complaints to parliamentarians and the Crime and Misconduct Commission. Whilst the Applicants have, a right to pursue these avenues it highlights the Applicants inability to let matters go and move forward in a positive manner and displays a lack of trust and confidence with the Department.
The Tribunal notes that despite WCR’s evidence that she had reached a point of resolution in 2012, WCR went on to write the manuscript in June 2013 and March/April 2014 and continues to seek other directions from the Tribunal as recently as July 2014.

The fact that there is no trust between the parties makes it difficult to accept that the Applicants will be able to manage a successful relationship with the Department. WCR’s own evidence about using a support agency as a “buffer” between her and the Department confirms that this relationship is not one of partnership, a partnership being a necessary reality between a foster carer and the Department.
The Applicants talked about WL acting as the main communicator with the Department. The Tribunal agrees with the Respondent that this would be simply unrealistic. WL in his evidence acknowledged that he did not always agree with the choices and actions of WCR. It is unclear how successful WL has been or if he has attempted to influence his wife's behaviour on those occasions when he has not supported her actions. This once again emphasises the problematic relationship that exists between the Applicants and the Department.
The Department submits that WCR complaints undermined the actions of the Department, affected the confidence of staff interactions with their children and grandchildren and significantly compromised WCR's capacity to work collaboratively with the Department regarding the achievement of plans towards protecting children.
The Tribunal is satisfied in these circumstances that it would be difficult for the Applicants to maintain an appropriate relationship with the Department even though WCR now acknowledges that her expectations of the Department were unrealistic.

Consideration of the evidence supporting WL and WCR's application to be appointed as foster carers?

There are clearly many positive things about WL and WCR's value as people. The report writers all talk in positive terms of WL and WCR's potential to play a positive role for caring for children.
The Tribunal heard from Ms AD who recommended WL and WCR approval as Kinship Carers in her assessment report dated 26 September 2011. However Ms AD’s report omitted a number of important issues.
Ms AD in her evidence confirmed that she had not documented all her contact with the applicants and all the information discussed with them. Ms AD failed to provide full details of the discussions with the children regarding physical discipline by their grandmother. Ms AD confirmed that WCR had reported that:
they did have a stick which they used to threaten the children however since discussions with the CSO during the investigation and assessment of their daughter they had disposed of the stick as they are aware that such measures of discipline are unacceptable and not in line with Departmental policy”.
Ms AD said she observed a stick at the WCR's home but could not recall anything particularly unusual or dangerous about it.
The Respondent submits that a reading of Ms AD's report suggests that whilst she received information, she did not explore or ask critical questions of WCR about ‘the educator stick’ and how WCR had used it in the past. This was necessary in order to more properly assess WL and WCR's likelihood as foster carers of engaging in physical discipline of children, or discipline that involves the use of threat.
The Tribunal accepts this submission. The Tribunal notes that Ms AD had difficulty in explaining the disclosures of the children and her failure to exploring historical issues. The Tribunal is satisfied that Ms AD assessment and report was either incomplete or selective. Ms AD's untested presumptions about the validity of CD's disclosures and her failure to consider AB’s previous disclosures affects the quality of her assessment. This also impacts upon the assessments of Ms C and Ms PL in that both assessors had access to Ms AD’s assessment and both referred in their written material and oral evidence to CD’s alignment with his mother and the reduced validity of his disclosures.
The Tribunal is of the view that Ms AD's approach to her assessment seems to have been largely to receive and accept information provided by WCR without analysis.
The Tribunal heard from Ms PL who provided both a Social Assessment Report and an Addendum report for the Tribunal's consideration; and based on both reports recommended WL and WCR for approval.
Ms PL submitted that she could find no evidence to conclude that WCR has a pattern of physical discipline against her grandchildren. She indicated when questioned that she would have concerns about the recommendation for WL and WCR if there was evidence of physical discipline.
The Department submits and the Tribunal agrees that Ms PL did not have access to the evidence before the Tribunal, which details disclosures of WL and WCR’s grandchildren. The Tribunal also notes that Ms PL did not have the opportunity to undertake a further critical analysis of WCR's use of physical discipline as expressed in the manuscript version 2 at pages 113 and 114 as WCR declined to be further interviewed.
Ms PL’s statements indicate that in making her assessment she was not aware of the disclosures that had been made by WCR’s grandchild AB about being hit with a stick in March 2011, and June 2011 when being interviewed in relation to care provided to him by his mother.
The Department submits that Mrs PL does not seem to have explored WCR’s statements recorded in Ms AD's report about hitting with a stick as a form of discipline. Ms PL also does not seem to have tested WCR in assessment interviews about the commentary and manuscript that suggests a view that discipline is at the least in part about control and obedience through fear of consequences.
Ms PL told the Tribunal that she had anticipated that more of WCR's learnings would have been reflected in the revised version of the manuscript. She did not have the opportunity to put to WCR her observations about the absence of further reflections on the revised manuscript for the purposes of her Addendum Report because she was not afforded the opportunity of a further interview with WCR.
The Tribunal also notes in Ms PL’s oral evidence of the barrier to communication presented by WCR's communication style. Ms PL accepts that there needs to be a degree of trust between the Department and a foster carer. Ms PL agreed that WCR needed to demonstrate that she had made changes to her communication style in order for her to successfully engage with the Department.
The Tribunal heard evidence from Ms C, who recommended WL and WCR be approved as foster carers in her Foster Carer assessment dated 11 January 2013.
Ms C told the Tribunal that she had reviewed the Departmental material and explored with WL and WCR the circumstances around the incidents on 26 September 2011. She proposed to the Tribunal that as a result of her investigation she remained satisfied that WL and WCR were suitable to be approved.
The Tribunal is reluctant to place weight on Ms Cs’ exploration of the events of 26 September 2011, as in evidence Ms C referred to an event with CD and a wooden spoon, an event that is not detailed in either the Departmental or WCR’s documentation.
The Tribunal agrees with the Respondent’s submissions that the robustness of Ms C’s review of the Departmental material is also questionable as when questioned Ms C conceded that after her interview with WL and WCR she did not revisit the Departmental files to establish the validity of the information that they had provided.
The Tribunal is of the view that Ms C approach to her assessment report seems to been to largely receive and accept information provided by WCR without analysis.
The Applicants submit that little weight should be attached to the manuscripts because they set out WCR's personal views and beliefs. The Tribunal agrees that WCR is entitled to have her own personal views and beliefs. However, these views and beliefs are relevant to the Tribunal forming a view about her suitability to be a foster carer and views on parenting. The Tribunal attributed considerable significance to the manuscripts provided by WCR.
The Tribunal does not wish to be prescriptive in terms of the approach of the report writers however makes the point that report writers must critically evaluate the information before them. This involves appropriate research of the Department's records. This involves raising with the applicants any issues that are raised in the Departmental material. This involves an evaluation of the risks. This involves the exercise of professional judgement. The reasoning of the report writers should be clear.
The Tribunal must be satisfied that WL and WCR meet the criteria set out in section 135 of the Act.
The focus of the Tribunal is on the best interests of children. The paramount principle is that the safety, wellbeing and best interest of children comes first. The Tribunal must apply the definition of “suitable person” as defined in Schedule 9 of the Child Protection Regulation 2011 in that the person does not pose a risk to a child’s safety. Even if the Tribunal is satisfied that WL and WCR demonstrated no harm to their grandchildren, the Tribunal still needs to decide if the events of 26 September 2011, or any other evidence, would pose any risk to a child as a general concept.
The Tribunal agrees with the Respondent’s submission that there remains a possibility given WCR’s parenting strategies, which include physical punishment that this poses a level of risk to a child’s safety.
The Tribunal is satisfied that WCR has long held feelings of frustration and anger regarding the Department's historical actions, remains a barrier to her capacity to effectively communicate with, and resolve concerns around the development of plans for the protection of children.

Conclusions

The Tribunal for these reasons is satisfied that WL and WCR are not “suitable persons” to be appointed as foster carers and confirms the decision of the Department..
The Tribunal dismisses the Application made by WL and WCR.
The Tribunal was also of the view that a non-publication order was appropriate so that identifying details of the Applicants’ daughter and grandchildren are withheld from the public. The Tribunal was satisfied that it was in the interests of justice that a non-publication order should be made so that Applicants’ daughter and grandchildren are not unnecessarily harmed by any publication of the details of this proceeding. Such an order also has the consequential effect of the Applicants’ identity being withheld from public scrutiny.