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  • Unreported Judgment

RE v Department of Child Safety, Youth and Women

 

[2020] QCAT 151

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

RE and RL v Department of Child Safety, Youth and Women [2020] QCAT 151

PARTIES:

re and rL

(applicant)

v

Department of child safety, youth and women

(respondent)

APPLICATION NO/S:

CML173-19 and CML177-19

MATTER TYPE:

Children's matters

DELIVERED ON:

29 April 2020

HEARING DATE:

19 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Murray

Member Allen

Member Garner

ORDERS:

  1. The Tribunal confirms the decision of the Department of Child Safety, Youth and Women of 9 April 2019 to remove Child 1 and Child 2 from the care of RE and RL.
  2. The Tribunal confirms the decision of the Department of Child Safety, Youth and Women of 27 May 2019 to cancel RE and RL’s certificate of approval as foster carers.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – CHILDREN IN NEED OF PROTECTION – PROCEEDINGS RELATING TO CARE AND PROTECTION – GENERALLY – review of Department’s decision to remove children from the care of foster carers  – review of Department’s decision to cancel a joint foster carers’ Certificate of approval as foster carers – where Standards of Care have been breached – corporal punishment, safety, welfare and best interests of the child. 

Child Protection Act 1999 (Qld), s5, s82, s89, s90, s91 s99D s122, s132, s134, s135, s139, and s140 Schedule 2

Child Protection Regulation 2011, s22, s26

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s6, s9, s17, s19, s20, s21, s 24 and s28

Human Rights Act 2019 (Qld) s9, s13, s15, s25, s26, s48 and s58

APPEARANCES & REPRESENTATION:

Applicant:

RE and RL, supported by SS Foster Care and Kinship Care Queensland

Respondent:

T, B, Court Services Department of Child Safety, Youth and Women and K, R, Senior Practitioner

REASONS FOR DECISION

Introduction

  1. [1]
    RE and RL were the long-term foster carers of brothers identified as Child1 and Child2. The Department made a decision, following an investigation, to remove the children from RE and RL’s care[1]. RE and RL have made an application to the Tribunal to review that decision. After that the Department also made a decision to cancel RE and RL’s certificate of approval as foster carers[2]. They have also made application to review that decision. The Tribunal heard both of the applications together and following are the Tribunal reasons for its decision.

Jurisdiction of the Tribunal to review the decisions

  1. [2]
    The Tribunal has jurisdiction where it is conferred on it by an enabling act[3], in this case the Child Protection Act 1999 (CP Act), to review decisions[4].  In this case s247 of the CP Act enables an aggrieved person for a reviewable decision to apply to the Tribunal to have the decision reviewed. Schedule 2 of the CP Act sets out what are reviewable decisions under the CP Act and who are aggrieved persons. In accordance with Schedule 2 the decision to remove the children under s89 of the CP Act and to cancel RE and RL’s certificate of approval as carers under s140 of the CP Act are reviewable decisions and RE and RL are aggrieved persons in respect of both of those decisions.
  2. [3]
    When exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and CP Act and may perform the functions conferred on it by the CP Act and has all of the functions of the decision-maker for the reviewable decision.[5] The Tribunal must hear and decide a review by way of a fresh hearing on the merits and the purpose of the review is to make the correct and preferable decision.[6]
  3. [4]
    The Tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker with any necessary directions.[7]
  4. [5]
    The role of the decision-maker is set out in s21 of the QCAT Act and is to assist the Tribunal to make the correct and preferable decision. As part of that role the decision-maker must provide the Tribunal with a statement of reasons for its decision and a copy of any document or thing in their possession or control that is relevant to the review.[8]
  5. [6]
    Proceedings in the Tribunal under the CP Act are subject to the provisions of Chapter 2A of the CP Act.[9] The Tribunal is to make decisions in a review that promote the best interests of the child about whom the reviewable decision was made, proceedings are to be conducted in a way that uses adversarial and inquisitorial procedures as appropriate to arrive at the best possible decision in the circumstances and to foster an atmosphere of review that enhances the delivery of services to children.[10]
  6. [7]
    The Tribunal must have regard to the principles mentioned in 5A to 5C of the CP Act.[11] These include that the main principle for administering the CP Act is that the safety, well-being and best interests of a child are paramount.[12] There are a set of general principles set out in s5B of the CP act for ensuring the main principle of the Act which relevantly includes that a child has a right to be protected from harm or risk of harm; and if a child is removed from the child’s family, the child should be placed with the child’s siblings, to the extent that is possible. 
  7. [8]
    Section 5C of the CP Act sets out principles relating to Aboriginal or Torres Strait Islander children, and Child1 and Child2 identify as Aboriginal. These principles are that a child should be allowed to develop and maintain a connection with the child’s family, culture, tradition, language and community; and the long-term effect of the decision on a child’s identity and connection with their family and community should be taken into account.
  8. [9]
    The Tribunal may in accordance with s99S of the CP Act appoint a separate representative to act in the child’s best interests having regard to the expressed views of the child and as far as possible to represent the views and wishes of the child. The Tribunal made such an order in this case. Where a reviewable decision is about a child such as in the case of the removal decision, then the child has the right to express their views and wishes to the Tribunal whether or not they are a party to the proceeding in accordance with s99V of the CP Act.

Laws in relation to decision to remove the children from the care of the Applicants – CML173-19

  1. [10]
    The chief-executive makes the decision to place a child in care under s82 of the CP Act, in this case Child1 and Child2 were placed in the care of RE and RL. The chief executive is then required to take reasonable steps to ensure a child placed in care is cared for in a way that meets the statement of standards set out in s 122(1) of the CP Act. These include that:
    1. (a)
      the child’s dignity and rights will be respected at all times,
    2. (b)
      the child’s need for physical care will be respected at all times;
    3. (c)
      the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self-regard;
    4. (d)
      the child’s needs relating to his or her culture and ethnic grouping will be met;
    5. (e)
      the child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met;
    6. (f)
      the child will receive education, training or employment opportunities relevant to the child’s age and ability;
    7. (g)
      the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour;
    8. (h)
      the child will receive dental, medical and therapeutic services necessary to meet his or her needs;
    9. (i)
      the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age;
    10. (j)
      the child will be encouraged to maintain family and other significant personal relationships;
    11. (k)
      if the child has a disability – the child will receive care and help appropriate to the child’s special needs.
  1. For subsection (1)(g), techniques for managing the child’s behaviour must not include corporal punishment or punishment that humiliates, frightens or threatens the child in a way that is likely to cause emotional harm.
  2. For subsection (1)(j), if the chief executive has custody or guardianship of the child, the child’s carer must act in accordance with the chief executive’s reasonable directions.
  3. The application of the standards to the child’s care must take into account what is reasonable having regard to-
  1. (a)
    the length of time the child is in the care of the carer or care service; and
  1. (b)
    the child’s age and development.
  1. [11]
    Where the chief executive is concerned that a child is not being cared for in accordance with the standards of care they may remove a child from the care of a carer if they are satisfied it is in the best interests of the child in accordance with s89 of the CP Act.
  2. [12]
    In this case concerns were raised in regard to corporal punishment being used by RE to discipline Child1 and Child2 and those matters were substantiated upon investigation by officers of the Department. The chief executive then made the decision to remove the children from RE and RL’s care on the grounds that as RE was breaching the standards of care, in particular the use of corporal punishment, it was not in the best interests of Child 1 and 2 to remain in RE and RL’s care. The decision to remove them from their care was made under s82 of the CP Act.
  3. [13]
    The Tribunal must consider whether or not RE and RL have met the standards of care in regard to Child1 and Child2 and then whether it is in the best interests of the children to be removed from RE and RL’s care.

Laws in relation to the decision to cancel the Applicants’ Certificate of Approval as foster carers – CML177-19

  1. [14]
    RE and RL as persons living together as spouses were required to hold a joint certificate of approval as foster carers.[13] RE and RL’s certificate of approval had been renewed a number of times and the current certificate of approval was issued in accordance with s134 (5) of the CP Act.
  2. [15]
    The chief executive must be satisfied of the matters set out in s135 of the CP Act before they can issue a certificate of approval. These matters include that the applicant is a suitable person to be an approved foster carer; the applicant has a current positive prescribed notice under the Working with Children' (Risk Management and Screening) Act 2000 (Working with Children Act’); and the applicant is able to meet the standards of care in the statement of standards; and the applicant is able to help in appropriate ways towards achieving plans for the protection of a child placed in the carer’s care.
  3. [16]
    The requirements to be met to be a suitable person which are set out in the regulation to the CP Act are that the person: does not pose a risk to a child’s safety; and is able and willing to protect a child from harm; and understands, and is committed to, the principles for administering the Act; and has completed any training reasonably required by the chief executive to ensure the person is able to care properly for a child[14]. In addition to those requirements the chief executive may consider a person’s employment history, their physical or mental health; or any other relevant matter in deciding whether they are a suitable person.[15]
  4. [17]
    The chief executive may suspend or cancel a certificate of approval on the grounds set out in s139 of the CPA Act including that the holder of the certificate is not a suitable person to be an approved foster carer; the approved carer is not meeting the standards required under the certificate of approval or another condition of it; or the holder has contravened a provision of the CPA Act.
  5. [18]
    If the chief executive considers a ground exists to suspend or cancel a certificate of approval they must give the holder of the certificate a notice stating the matters set out in s140 of the CP Act, which includes the proposed action, the grounds for the proposed action, the facts and circumstances forming the basis of the grounds and advising that the holder may make written representations within 28 days to show why the proposed action should not be taken. If after considering all written representations the chief executive still considers a ground to take the proposed action exists, the chief executive may cancel the authority or suspend it for a period. The chief executive must inform the certificate holder of the decision by written notice and if the decision is to cancel or suspend the certificate of approval the notice must state the reasons for the decision and that the holder may apply to the Tribunal to have the decision reviewed.
  6. [19]
    RE and RL’s joint approval as foster carers was cancelled following the finding the substantiated allegations of harm to Child1 and Child2.
  7. [20]
    We note that following the cancellation of RE and RL’s certificate of approval they were issued with negative prescribed notices under the Working with Children Act. This would have triggered a suspension of their certificate of approval under s140c of the CP Act except at the time they did not have a certificate of approval as it had already been cancelled. The effect of the issue of the negative prescribed notice would need to have been taken into account if the Tribunal had been minded not to confirm the chief executive’s decision.
  8. [21]
    Having regard to the Tribunal’s findings in regard to the allegations of harm the Tribunal must make its own decision in regard to whether their certificate of approval as carers should be suspended or cancelled.

Human Rights Act in relation to the Tribunal process

  1. [22]
    The Tribunal as a public entity[16] is subject to the requirements of the Human Rights Act 2019 (HR Act) in its administrative review jurisdiction. The Act requires the Tribunal to ensure that the human rights which are applicable to RE and RL are subject only to reasonable limits that can be demonstrably justified in a free and democratic society based on human rights, dignity, equality and freedom[17].
  2. [23]
    In interpreting statutory provisions, the Tribunal is also required to the extent possible that is consistent with its purpose, to do so in a way that is consistent with human rights[18]. The Tribunal acknowledges that it is unlawful for it to act or make a decision in a way that is not compatible with human rights, or in making a decision, to fail to give proper consideration to a human right relevant to the decision[19]. The Tribunal considers that it must have regard to RE and RL’s entitlement to recognition and equality before the law[20].
  3. [24]
    The Tribunal is satisfied that there have not been any limits placed on RE and RL’s human rights in this regard.  During the process of this application they have been able to put their material before the Tribunal, they have had an opportunity to answer the matters raised by the Department, they have been able to have their witnesses appear at the hearing and they have been able to cross-examine the Department’s witnesses. The Tribunal is required to observe the rules of natural justice in terms of the hearing rule and the bias rule[21] and to take all reasonable steps to ensure that RE and RL had a proper understanding of the Tribunal process. These requirements of the QCAT Act reinforce and help to ensure that the Tribunal is exercising its powers in respect of RE and RL in a way consistent with their human rights.
  4. [25]
    There are specific human rights in the HR Act which deal with a person’s family; Privacy and Reputation[22] and protection of families and children[23]. The Tribunal notes that RE and RL were the foster carers of Child 1 and Child 2 and as such they do not constitute family for the purpose of the HR Act so those rights do not apply to RE and RL when considering the current matters before the Tribunal. The Tribunal though in making its decision is subject to the requirements that every child has the right to protection needed by the child, and is in the child’s best interests, because of being a child[24]. This is reflective of the requirement in the CP Act in regard to the decision for the removal of the children being in their best interests and the Tribunal has exercised its jurisdiction having regard to that requirement.
  5. [26]
    The Tribunal is satisfied that it has complied with the requirements of the HR Act in regard to the limitation of human rights, the interpretation of legislation and the making of its decision in regard to relevant human rights of RE and RL as well as Child 1 and Child 2.

The children and the concerns held by the Department

  1. [27]
    Child1 and Child2 are brothers from a sibship of four. Both parents are Aboriginal. The brothers came into the care of the Department of Child Safety, Youth and Women (‘the department’) at the age of three and two years old, respectively. They first experienced a short placement of three weeks with general foster carers before being placed with RE and RL, who were general foster carers.  They remained in this placement until their removal in April 2019. They were almost ten and nine years of age at this time.
  2. [28]
    The children are the subjects of a Child Protection Order granting long term guardianship to the Chief Executive until their 18th birthdays. The order was made in September 2014.
  3. [29]
    Child1 has a diagnosis of a mild intellectual impairment, possible PTSD and an attachment disorder[25] and receives NDIS funding for services including occupational therapy, speech therapy and physiotherapy.
  4. [30]
    According to Paediatrician1, Child2 has a borderline intellectual impairment with a comorbid inattentive variant of ADD. He also has a rare medical condition[26].
  5. [31]
    According to Evolve psychologist, Child2 does not meet diagnostic criteria for an intellectual disability and is most likely to have a lower intellectual functioning[27]. He is not eligible for NDIS funding. The Evolve psychologist believes he has an unspecified disruptive impulse-control and conduct disorder.
  6. [32]
    Both children came to care after experiencing significant neglect within a domestic violent household with their biological family.
  7. [33]
    The placement of Child1 and Child2 with RE and RL was in a rural setting and at the time of removal another child was in the placement. This child has a significant disability.
  8. [34]
    Child1 and Child2 have no contact with their biological parents, and some occasional phone and face to face contact with their paternal grandmother. They have experienced regular respite with foster carer 1 (“FC1”) about twice per month.
  9. [35]
    In August 2018 Child1 disclosed to youth worker1 that RE hit them with an egg spatula/flipper on their backs and on the backs of their legs. The egg spatula was referred to by the boys as the “naughty stick” and they were threatened by RE with it.
  10. [36]
    Further concerns were raised in February 2019 that RE had thumped Child1 with her fists on his back and she yelled and screamed at him.
  11. [37]
    All the concerns were referred to the Queensland Police Service and Child1 was interviewed. 
  12. [38]
    Child1 told the police that he and his brother and foster brother were hit by RE with “the smacking stick”, leaving a “red mark but no bruising and she only does this when he is hurting someone else to show him that you shouldn’t hurt people”. He said he felt safe living with RE and RL. He said when he was about eight years old the egg flipper was broken and RE used her fists to pound against his back instead, when he was fighting with his brother. He also said sometimes he feels unsure if things happen in a dream or if it’s real.
  13. [39]
    Police didn’t interview Child2.  A Child Safety Officer told police officers that Child 2 said RE hits them on the back with the egg flipper if they are being naughty. No further action was taken by police who saw it as a domestic matter.
  14. [40]
    Further concerns were raised in March 2019. Child1 said he and his brother were told by RE that he and his brother were not allowed to talk to the youth workers anymore, and the youth workers were saying things that were not true. Further, they were not supposed to talk to the department and to keep it their secret, ‘pinky promise’, and to say she had only hit them once.
  15. [41]
    A letter dated 9 April 2019 confirmed the decision to remove the boys from the care of RE and RL[28] after the allegations of harm were substantiated and it was found RE was responsible for the physical and emotional harm and she had not met the Standards of Care in the statement of standards[29].
  16. [42]
    On 27 May 2019 the department cancelled RE and RL’s joint foster carers’ Certificate of Approval as foster carers[30] as a result of the substantiated allegations of harm to the children.
  17. [43]
    In the decision to cancel the carers’ Certificate the department also had regard to matters of concern that were recorded in 2018 including the following;
    1. (a)
      The children had presented in an unhygienic state to school on a couple of occasions and they were late to school regularly. There was a podiatry concern for one of the boys. RE was seen to be slow to identify and respond to the children’s basic needs (medical and clothing) until prompted by others. It was observed RE favoured Child1. She was noted to become angry and escalate about fairly normal child behaviour such as losing a water bottle. She would reprimand them very loudly in public drawing attention to all of them and humiliating them. She was observed to be punitive and lack emotional connection with the boys while being very passionate about administrative and clerical arrangements with the department[31].
    2. (b)
      The department also held concerns that RE had a poor working relationship with staff from the department and foster care support agencies. It was reported that RE became fixated on departmental policy and pointing out the short-comings of foster care agency and departmental officers, rather than engaging in discussions about the children’s care and progress. She would not take direction or advice from officers about the children.
  18. [44]
    There were concerns that RE had smacked Child1 when he told a neighbour that RL shot the neighbour’s dog.  RE denied this but acknowledged she smacked Child2 with an open hand on two occasions. She hit him when he took a camera from the shed and damaged it and when he took a tomahawk from the shed and hit his brother in the head with it. The outcome of inquiries into these concerns was to “continue to monitor” the situation.
  19. [45]
    There were reports from Community Visitor 1, the Paternal Grandmother and from RE that Child1 recanted his disclosures and told them he had lied.

The applicants’ case

What RE and RL said about the allegations of harm

  1. [46]
    RE acknowledged she did hit Child1 once with the egg spatula. However, she said she did this three years ago when “he tried to burn the house down”.  She said he had lit small fires twice before and on this third occasion he burnt a hole in the carpet and was melting a toy. She went into the kitchen, retrieved the egg spatula, returned with it and hit him.  She said he hasn’t lit a fire since.
  2. [47]
    RE said she has hit Child1 twice with an open hand.  Once when he took RL’s camera from the shed and damaged it.  She said he was about seven or eight years old at the time.  The second time was when Child1 took a tomahawk from the shed and hit his brother in the head with it.
  3. [48]
    RE said she has hit Child2 with an open hand, but she cannot recall when or why.
  4. [49]
    RE said she did not thump Child1.
  5. [50]
    RE said she didn’t know she was not to use corporal punishment until a worker from foster care support agency2 told her in October 2018.  She said she hasn’t hit them since this time. RE said she did not remember corporal punishment being discussed with her during her carer assessment process.
  6. [51]
    RE said she felt betrayed by Child1 making these accusations. Although she admitted to smacking them, she denied thumping Child1. She said she told the children’s psychologist1 about the accusations, that she felt betrayed by him and asked him to help them to repair their relationship.
  7. [52]
    RE said that Child1 told her that he made up this allegation and that it happened recently not three years ago because RE and RL were away overseas and he thought she didn’t love him anymore. She said she reassured him of their love.
  8. [53]
    RE told the Tribunal that smacking wasn’t her “go to”. She said Child2 needs positive reinforcement and praise but Child1 can have violent outbreaks and is hard to de-escalate. She and RL described how Child1 would bang his head until it bled when he first came to them. She said, they have spent years learning to understand and manage his behaviour and outbursts. There have been many times they have not been able to take him out in public due to his uncontrollable outbursts.
  9. [54]
    RE and RL in their statements and Affidavit material set out the level of care they have provided to the boys over the years.  This includes advocating for and taking them to occupational therapy, speech therapy, paediatric reviews, podiatry and psychological counselling.
  10. [55]
    RE said they were first connected with foster care support agency 1 but were not provided with support and could see little value in staying with the agency. They left that agency and remained as departmental carers. After some time they connected with foster care support agency2.  Initially they found this agency helpful and the manager was exceptional. However, she left the agency and Social worker 1 from the agency was allocated as a support worker for RE and RL and the children. RE found her to be of little benefit and often felt let them down by her not following up on matters, and not arranging respite or travel arrangements for the children to attend appointments.
  11. [56]
    RE felt that social worker1 unfairly and maliciously raised Matters of Concern and Standards of Care issues over minor matters and did not discuss them with RE first.  RE said she was not informed of the matters until an outcome was decided. For example, she said a statement of concern was raised by social worker1 over the children’s shoes being too small and in disrepair when the children had new shoes but took their old shoes with them on respite. There was another report made about a podiatry concern for one of the boys.
  12. [57]
    RE told the Tribunal she has been a strong advocate for the boys to ensure proper funding for them so they could access services and respite.  This has led her to make complaints at a high level in the department about individual officers and she believed this was justified.  RE considered that the Matters of Concern and Statement of Standards matters raised by the department was based on retribution for her making these complaints.
  13. [58]
    RE told the Tribunal that 2018 was a very difficult year for her and the family. Both her parents were elderly and unwell. Her mother passed way in March that year and her father was living with RE and RL. RE was providing full time care for him. He had vascular dementia and required 24 hour care.  RL was working away for weeks at a time and RE was carrying all of the care responsibilities for the children and her father. The third child in their care has significant disabilities and also requires a high level of care and support.  Social worker1 arranged support from youth workers to take the boys to dance and physiotherapy so RE could stay and look after her father.
  14. [59]
    Further RE felt pressure to accept an emergency placement for the boys’ older brother quite soon after her father had passed away. She understood it was for a few days but it was stretched out for five weeks.  RE said this was a very difficult placement as the older brother had violent outbursts and is alleged to have held a knife to one of the boys. She said she did yell at the boys during this period and in response to the older sibling’s behaviour.
  15. [60]
    RE felt she has been unfairly treated by departmental officers. She considered they have not always followed policy and she has not been paid the proper allowances for the children.  She said in the end the children would suffer if they missed out on services to which they were entitled. RE felt officers were not sympathetic to her loss after her parents passed away and did not support her appropriately. RE said Practice Manager1 asked her if her grief and loss was causing emotional harm to the boys and if they were safe with her.  RE said they were always safe with her and this question was unfair.
  16. [61]
    RE said she and RL have made a life commitment to these children that goes beyond their 18th birthdays.
  17. [62]
    RL told the Tribunal that he works away from home for weeks at a time and then returns home for a few weeks.  RE told him that she had hit Child 1 once on the back of the legs with an egg flip for lighting a fire.  He didn’t see the smack as serious and saw no need to report to the department. 
  18. [63]
    RL said this was the third time Child1 had lit a fire.  He was there when he lit one of the fires using food wrapping and tissues.  RL intercepted him and sent him to his room.
  19. [64]
    RL said he never hit the boys.  There was never a need.
  20. [65]
    RL spoke about living in a rural location. That he owns a gun, has a license and keeps ammunition and the gun parts locked away in three separate locations. The department is well aware of this.  He said the issue mentioned about him shooting the neighbour’s dog was true.  He said they had trouble with the dog coming onto the property and attacking their livestock.  They had spoken with the neighbours and warned he may be forced to shoot the dog if he continued to attack their animals.  This did occur.  He told RE to take the boys into the house and he went into the paddock and shot the dog.  He said the boys didn’t see it or ask about it.
  21. [66]
    RE told RL that Child1 took the tomahawk he had stored in a trailer used to cut kindling and hit his brother in the head with it.  He understood no medical attention was required and didn’t believe it required reporting the incident or injury to the department.
  22. [67]
    RL said that a lot of the parenting and responsibility for the children fell on RE as he was away from home for weeks at a time and when he was at home RE still assumed most of the responsibility. He said the plan for the future is to sell their properties, RL will look at changing jobs so they can be more available for the children if they were to return.

Community Visitor

  1. [68]
    Community Visitor1 made bi-monthly visits to the children in the placement of RE and RL for 18 months during 2018 and 2019. She said she would talk to the boys privately and sometimes RE would be present. She had no concerns about the placement and nothing of concern to report to the department. After the Statement of Concern was recorded, she visited monthly. Community Visitor1 said the boys told her Child1 made up the allegations about being hit by RE, that he felt pressured by a support worker to say this.  She said he appeared sad and regretful. She said Child1 said “nothing happened, I said something I shouldn’t have. It wasn’t true. I made up stories. I said mum hit me”. Community Visitor1 said “did mum hit you?” and he said “no”. 
  2. [69]
    Community Visitor1 said she reported to the department that the children told her it was a lie.  Her visit on 14 March 2019 was recorded on 27 March 2019 under Visit – Activities[32] and records that Child1 said he made up part of the story, he said he told the police mum hit him but it was years ago because he kept trying to burn the house down.  He was concerned what will happen now as he had been interviewed by police.

Children’s Psychologist1

  1. [70]
    The Children’s Psychologist1 treated the children intermittently and worked with RE and RL in their role as foster parents to the children for about six years. His understanding was that the department investigated an incident that occurred several years ago of physical discipline of Child1 by RE and more recently, concerns of emotional harm.
  2. [71]
    He found the department’s handling of the matter confusing and he was displeased that he was not consulted in the decision making about the substantiation of the allegations and the removal of the children and the lack of therapy made available to the children after removal. He was also dissatisfied that he was not consulted by the separate representative’s social assessor[33]. He said the assessor contacted him and only offered one appointment time for a teleconference to seek his opinion and this time was not suitable.  Therefore, his opinion was not included in the report.
  3. [72]
    The children’s Psychologist1 did not find the children were emotionally harmed while he was treating them. The children did not disclose or report to him that RE had hit them or make any complaints to him about RE or RL. The children’s Psychologist1 said “there were no red flags” that he saw while he was treating the children.  He considered the children should not have been removed from the care of RE and RL and that they had a close and loving bond with them.
  4. [73]
    Just prior to commencing the counselling sessions with the children Psychologist1 would often have a conversation with RE about her concerns.
  5. [74]
    Children’s Psychologist1 recounted that RE told him in early 2019 that she “felt betrayed by Child1 by his accusations” about her and she asked him to help her to repair the relationship with Child1. He said he spoke with Child1 who was upset and teary. He understood Child1 shared something that had occurred years ago but had surfaced now.
  6. [75]
    The children’s Psychologist1 understood physical punishment was not permitted by the department. He thought every child was different as to how they would be affected by being physically disciplined. He said it depended on the nature of it and the resilience of the child. For example, where it was on open hand, being hit on the backside would be different to the use of a weapon or implement. He saw no evidence of emotional harm or psychological injury while he was treating the children. He expected that they would disclose to him, but they did not disclose anything.

Other witnesses for RE and RL

  1. [76]
    Respite carer1 provided respite to RE and RL over many years on a regular basis. She found both boys missed RE and RL when they were away from them. The boys were with her when the department interviewed them at school about the allegations of being hit by RE. RE and RL were overseas and Respite carer1 phoned them and told them about the boys being interviewed.  She considered the department had “grilled the boys, and it was inappropriate and very upsetting to all”.  She said in her statement[34] that the “boys don’t fully understand the consequences of their behaviour. They both think that to get what they want, (sic) will act out accordingly”. 
  2. [77]
    Respite carer1 understood that corporal punishment was not allowed by the department and said she herself has never hit a child in her care.  However, her own children and her nieces and nephew’s discipline was a different matter and their parents allowed her to smack them if she thought it was required.
  3. [78]
    The Paternal Grandmother stated in her statement that at no time was there any violence by RE and RL towards the boys. She said over Christmas or at the beginning of 2019 she and her husband stayed with RE and RL when Child1 told her “he lied to welfare because he was angry” and that he has told her a few times that he lied about being hit. She believes the department persuaded the boys into lying by the way they suggested that things happened, and the boys became confused[35].   She believes the boys were loved and well cared for with RE and RL and shouldn’t have been removed. 
  4. [79]
    Paediatrician1[36] has treated the boys since November 2014.  He stated that the standard of care provided to the boys by RE and RL has been extremely high over this time and considered that both boys have prospered emotionally and physically as a result. He was surprised that they were removed from their care.
  5. [80]
    Six letters from the period of 2016 to 2018 from Paediatrician1 to referring general practitioners, were provided by RE and RL to the Tribunal. Paediatrican1 was not available to speak with the Tribunal at the hearing. However his letters state that the boys had flourished in the care of RE and that she was vigilant in ensuring they had access to medical and health related services.
  6. [81]
    The children were enrolled in School1 from 29 January 2019 to 26 April 2019. It was a small rural school and Principal1 told the Tribunal the boys settled in well and she was their teacher. She found RE was an active partner in the boys’ education[37].
  7. [82]
    The Tribunal notes that Principal1 knew RE prior to the boys’ enrolment at the school through a craft group and Facebook. RE also treated Principal1’s family members through RE’s health clinic. However, she informed the Tribunal they were not friends.  She said the boys arrived at school and were picked up after school on time and there were no issues that she saw with their care by RE.

The Department’s Case

  1. [83]
    Departmental Child Safety Officer1 (CSO1) was the CSO for the children from November 2017 until she commenced parental leave in August 2019. She attended home visits, stakeholder meetings, telephone and email communication with RE and completed Complex Support Needs Allowance applications and respite requests for RE and RL as well as planning support concerning the National Disability Insurance Scheme. She was involved in the investigation and assessment of allegations of breaching Standards of Care when Child1 and Child2 disclosed that RE smacks them with an ‘egg flip thing’ on the back of the legs, bottom and back when they were noisy when everyone was sleeping and indicated for other transgressions. Child1 said RE thumped him when he was lying on his back, and that the other child in the placement also gets hit.
  2. [84]
    CSO1 recorded additional concerns from a notifier that Child1 said RE told him they were not allowed to talk to the youth workers or to the department and to keep it their secret, and to say that she only hit them once. The harm report was finalised by CSO1 indicating the concerns regarding emotional harm were substantiated and it was held the standards of care were not met[38].
  3. [85]
    CSO1 reported that RE was difficult to engage with about the children’s progress and needs.  She was aware RE had made complaints about officers to Regional Directors and to the Minister, but she saw her role was to work through these issues and establish a good working relationship with RE. Initially she thought this was going well but it soon deteriorated.  She felt RE did not like being questioned about her care of the children. She said RE became fixated on policy and carer allowances and was not able to focus or talk about the daily routines and progress of the children. CSO1 then felt intimidated most of the time and opted to take a support worker with her when visiting the children. She said during home visits RE was openly hostile with her as soon as she arrived.
  4. [86]
    Team Manager1 from foster care support agency2 has not met RL but met with RE on many occasions at meetings, two home visits and supervised the social worker for the family from March 2017 when RE and RL joined with the agency until February 2019. She described a similar strained relationship with RE that CSO1 had and listed various dates and times that incidents had occurred. She said the relationship was good in the beginning, but it soon deteriorated when RE was challenged or a worker disagreed or suggested a different view or strategy for the children. She listed the concerns for the children including being smacked with the egg flip, speaking harshly to the children and unfair treatment such as holding one of the children’s favourite meals from them while the rest of the family was served this meal.
  5. [87]
    Team Manager1 told the Tribunal that social worker1 worked and trained overseas with 30 years’ experience in child protection and mental health and was well regarded by the children and families with whom she worked.  Team Manager1 accepted that due to a heavy workload social worker1 may have forgotten to arrange appointments and could have made mistakes but did not accept she was unfair or let down RE or the children. Social worker1 had told Team Manager1 that RE was challenging to work with and she would constantly talk over her, wouldn’t listen and focus on policy. 
  6. [88]
    Case notes from foster care support agency2 were filed in the Tribunal under a Notice to Produce and reflected a deteriorating relationship between RE and the officers. Case notes recorded by social worker1 in July 2018, read by Team Manager1 at the hearing, stated a deep concern about the negative way RE spoke to and treated the boys. She said that RE was verbally harsh. For example, while at the shopping centre RE ordered the boys to stand with their backs to the wall for 20 minutes while she spoke with social worker1.  She told them they were not to move.  When one of the boys eventually came over to her, she said “did I tell you, you could move? Now get back there”. 
  7. [89]
    The Tribunal also heard from two other Child Safety Officers about the current placement for the children.

Independent assessment of the carers

  1. [90]
    Psychologist2 was commissioned by the department in 2015 to undertake an independent assessment of the needs of the children when concerns were raised about RE and RL’s care of them. She was commissioned again in 2019 by the department to undertake an independent carer capacity assessment of RE and RL.[39] 
  2. [91]
    In short, in 2015 Psychologist2[40] considered the children were overly assessed and involved with multiple interventions including psychological, cognitive, speech and language, occupational therapy, behavioural and paediatric therapies.  She found RE held firm views about her own diagnoses and needs of the children that included autism and Rett’s Syndrome for one child and Bipolar Affective Disorder for the other child. There was no medical evidence or diagnoses in regard to these opinions. Psychologist2 stated Child1’s presentation and issues were best explained as being due to attachment dysfunction and emotional dysregulation in the context of a prejudicial early history of significant neglect and abuse.
  3. [92]
    Psychologist2 found RE exaggerated and dramatized the boys functioning, needs and issues.  She thought this could be due to RE’s anxiety and lack of training and understanding about trauma and attachment issues. She further hypothesised it was because RE had learned that she needs to make ‘noise’ in order to be heard and to achieve the outcomes she wants for the children. She was also concerned that RE dismissed information that was not in accordance with her own beliefs about the children and that only her strategies for managing the children’s behaviour were correct. In 2015 Psychologist2 thought that it would be ideal if RE and RL would engage with a carer support agency.  She doubted that RE would in fact do this due to her expressed negative experiences with her former carer support agency.
  4. [93]
    In the 2019 reports, Psychologist2 stated that RE and RL had provided long term care for the children and should be commended particularly as the boys had presented with a number of challenges.  She accepted RE had been a strong advocate for the children and that both boys had a good attachment to her.  However, she was concerned about RE’s interactions with the children in the home. During the occasion Psychologist2 was observing the home environment she saw no obvious misbehaviour exhibited by the children, however they received frequent verbal reprimands from RE with limited to no positive parenting such as praise or reinforcement.
  5. [94]
    In the carer capacity assessment report dated 9 April 2019, Psychologist2 acknowledged several stressors on RE in the recent months which could reduce her capacity to cope. However, the majority of issues were observed prior to this period so that could not be solely attributed to the stressors.
  6. [95]
    She found a number of strengths in the placement that had been stable for the boys and that the boys were clearly attached to RE and RL. There were improvements in the boys’ functioning during the time in the care of RE and RL. There was support from some people interviewed during the assessment, that the boys should not have been removed from their care.
  7. [96]
    Psychologist2 found that many of the issues she identified in her assessment in 2015 remained apparent in 2019. RE remained hostile to support agency and departmental staff and anyone who held a different view to her. She remained fixated on policy and the short-comings of professional staff and not on the progress of the children. This made working relationships in the best interests of the children untenable.
  8. [97]
    Psychologist2 was concerned about RE’s attitude to physical punishment.  That RE in fact spoke positively about its use, whilst acknowledging it was not permitted, and stated it was effective and gave the impression that the restriction of its use was unhelpful and out of touch with the reality of caring for high needs children.
  9. [98]
    RE had acknowledged to Psychologist2 that she had smacked the children and that she told the children not to talk to their youth worker.  She did not see that this was teaching the boys they can’t disclose to support people and that only RE’s views are allowed.  She was concerned for the boys if they were to return to the placement with RE and RL.  
  10. [99]
    Psychologist2 found there were times where all the standards were being met for both children, however it was her view that at best the standards were not being met consistently and that the concerns may in fact be more serious than what was currently known.  She found RE’s lack of insight, her defensiveness and unwillingness to work collaboratively on these issues meant that she cannot meet the standards of care in the long-term for the boys. She held concerns for the physical and emotional safety of the children in RE and RL’s care in the long-term.

Separate Representative for the children

  1. [100]
    Family Consultant1 (FC1) prepared a Social Assessment Report dated 28 December 2019 ordered by the Separate Representative for the children. He interviewed a number of people but stated he did not interview Psychologist1 due to conflicting time schedules.
  2. [101]
    Child1 reported to FC1 that RE had hit them with the egg flip across the legs. He reported that he couldn’t talk to FC1 because RE had told him not to and it was “confidential”. He spoke about living with RE and RL and said it was “pretty good” and he didn’t feel scared living there. He said he wanted to stay where they are living now.
  3. [102]
    Child2 said RE had hit them with the egg flip but it wasn’t true that “mum chucked them on the ground and thumped us”. He noted he didn’t know why he said it, “I was scared and nervous”.  Child2 said he wanted to “go back to mum and dad. They are good parents”.
  4. [103]
    He accepted there was a limitation to his report in that he was not able to observe the boys in the home of RE and RL or the home of the current carer and also the inability to speak with Psychologist1.
  5. [104]
    FC1 said they are lovely young lads, delightful. However, FC1 said very little weight should be put on the boys expressed wishes as they don’t have the capacity to understand what it means. He had no doubt that RE and RL want to care for the boys but he found pertinent issues that need to be addressed in the best interests of the boys at this time. 
  6. [105]
    FC1 said he gives credit to RE and RL; they have done a great job particularly as the boys’ behaviours are challenging. However, he noted the findings of the psychologist who undertook the carer assessment about RE’s harsh reprimanding of the boys and her lack of insight and positive parenting. FC1 was also concerned about RE’s inability to work with departmental and support officers. In his opinion, this places her in an inability to meet the Standards of Care in the future.
  7. [106]
    FC1 was concerned about RE’s use of physical punishment on the boys and how she justified her actions for using the egg flip on Child2. FC1’s opinion is that it was not only the use of physical punishment but the threat of using it that is a concern for a child who has experienced abuse and trauma with attachment and emotional dysregulation.
  8. [107]
    He was also concerned that RE told the children not to talk to their youth worker and to keep information secret.
  9. [108]
    FC1 found it worrying that RL had used a gun in front of children who have been diagnosed with trauma. This is however refuted by RL who said the children did not see him shoot the dog.
  10. [109]
    FC1 remained of the view that without serious changes to RE and RL’s parenting then the children are at an unacceptable risk of suffering future harm.  He found the lack of insight disturbing. “While parenting is no exact science, caring for a child with complex needs and trauma requires more”. 
  11. [110]
    With the best interests of the children at the forefront, FC1 recommended that the children not return to RE and RL and that their communication with the children remain supervised until they can improve to a standard required by the department.

Discussion

  1. [111]
    RE and RL have cared for Child1 and Child2 for most of the children’s lives. They have been committed to them and ensured they have had access to health and therapeutic services.
  2. [112]
    It is not apparent why the children did not disclose the use of physical punishment to Psychologist1 as he considered the boys would have done so. He didn’t see any “red flags” over the six years he provided intermittent counselling for them and did not see any emotional harm. He did not although observe the children in the home. He also provided counselling or support to RE at the commencement of the counselling sessions for the children.
  3. [113]
    Psychologist1 acknowledged physical punishment was not permitted. He didn’t have full information of the investigated and substantiated harm to the children and may have expressed a different or further opinion about the effects of physical punishment on these particular children.
  4. [114]
    Psychologist1 should have been consulted as part of the social assessment of the children by the Family Consultant.  However, the Tribunal had the benefit of his evidence during the hearing.
  5. [115]
    Witnesses for RE and RL said the children were loved and well cared for and should have remained in the care of RE and RL. They have seen positive changes in the children while in their care and saw RE as a strong advocate for the children.
  6. [116]
    This may be the case however aspects of their parenting, particularly RE, did not meet the Standards of Care, in particular S122 (1) (a), (c) and (g) and for (1)(g) corporal punishment or punishment that humiliates, frightens or threatens the child in a way that is likely to cause emotional harm must not be used for managing the child’s behaviour.
  7. [117]
    RE used physical punishment on the children on at least four occasions; this was her evidence. She said she didn’t know she couldn’t use corporal punishment. The Tribunal does not accept this. RE and RL were both told this when they were first assessed and approved as foster carers. It was reinforced again during training.[41]
  8. [118]
    The two foster carers who were witnesses for RE and RL were well aware that physical punishment or corporal punishment was not allowed by the Department.  One said this was well known by foster carers and it was akin to assault.
  9. [119]
    Further to using physical punishment, the threat of using it, is equally harmful to some children. The egg flip was called the “naughty stick” and the children knew if their behaviour was unacceptable, they could be hit with it.
  10. [120]
    There was evidence that RE was harsh in her language, attitude and parenting of the children. She was seen to overreact and reprimand the children when their behaviour did not warrant this approach.
  11. [121]
    It is not acceptable and harmful to use these strategies on children who have experienced abuse and trauma as infants from their biological family; the reason they were placed in care under child protection orders.
  12. [122]
    It was clear that 2018 was a difficult year for RE with both her parents passing away.  Prior to his death, her father lived with the family and required full time care from RE.  She said she was not emotionally available as she could have been, for the children.  She was over committed when the children’s brother was placed with her for five weeks.  He presented with challenging behaviour.  This must have been difficult for RE and she did not appear to have the support she required.
  13. [123]
    The stress of 2018 cannot solely explain RE’s physical and harsh treatment of the children or her inability to work with the department and support services. RE said she used the egg flip to hit Child2 three years prior to the disclosures of the children. Concerns about RE’s parenting were apparent since 2015.
  14. [124]
    There is evidence RE has strong views and opinions about raising Child1 and Child2. She would often not accept the direction or strategies from departmental and support agency staff who were qualified and in a statutory role to do so.
  15. [125]
    It is concerning that RE and some of her witnesses reinforced to the children that Child2 had lied, made up stories and should not have talked to youth workers about being hit when in fact the children were hit by RE.  RE told Child2, psychologist1 and departmental staff she was “broken hearted and felt betrayed by his actions”. This would have left him confused and feeling like he was to blame. He did recant the allegations of RE thumping him on the back.
  16. [126]
    Psychologist2 was concerned for the boys if they were to return to the placement with RE and RL.   She found that at best the standards were not being met consistently and in fact the situation could be more serious than what was currently known.  She found RE’s lack of insight, her defensiveness and unwillingness to work collaboratively on these issues meant that she cannot meet the standards of care in the long-term for the boys. She held concerns for the physical and emotional safety of the children in RE and RL’s care in the long-term.
  17. [127]
    The Family Consultant who prepared the assessment report for the Separate Representative saw that without serious changes to RE and RL’s parenting then the children are at an unacceptable risk of suffering future harm.  He too found the lack of insight in RE disturbing. “While parenting is no exact science, caring for a child with complex needs and trauma requires more” and in considering the best interests of the children, they should not return to RE and RL.
  18. [128]
    Children may be removed from carers if the Tribunal is satisfied it is in their best interests to do so. The Tribunal must ensure that children placed in care are being cared for in accordance with the statement of standards. The Tribunal is satisfied as set out above that RE is in breach of these standards.  Further, that as RE and RL hold a joint certificate they are in breach of the standards. The Tribunal is further satisfied that as a result of these breaches of the standards it is in the best interests of Child1 and Child 2 to be removed from RE and RL’s care. 
  19. [129]
    The Tribunal confirms the department’s decision to remove the children from the care of RE and RL.
  20. [130]
    The Tribunal may suspend or cancel RE and RL’s certificate of approval if it is satisfied that a ground exists for such action if amongst other things they are not meeting the standards under the CP Act. In this case the Tribunal is satisfied that RE and RL have not met the standards in relation to Child1 and Child 2; in particular s122 (1) (a), (c) and (g). The Tribunal is further satisfied having regard to those findings that a ground exists to cancel RE and RL’s certificate of approval.
  21. [131]
    The Tribunal considers that the CP Act prohibition on the use of corporal punishment is fundamental to ensuring that the general principle in regard to protecting a child from harm or risk of harm, is met.  In circumstances where it has been substantiated that carers used corporal punishment over an extended period that the appropriate action is to cancel their carer certificate.
  22. [132]
    The Tribunal confirms the department’s decision to cancel RE and RL’s certificate to be foster carers.

Orders

  1. [133]
    The orders are as follows:
  1. The Tribunal confirms the decision of the Department of Child Safety, Youth and Women of 9 April 2019 to remove Child 1 and Child 2 from the care of RE and RL.
  2. The Tribunal confirms the decision of the Department of Child Safety, Youth and Women of 27 May 2019 to cancel RE and RL’s certificate of approval as foster carers.

Footnotes

[1]s89 Child Protection Ac t 1999 (CP Act)

[2]s139 and s140 of CP Act

[3]s6 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)

[4]s9(2)(a) and s17 QCAT Act

[5]s19 of the QCAT Act

[6]s20 QCAT Act

[7]s24 of QCAT Act

[8]s21 QCAT Act

[9]s99A CP Act

[10]s99C CP Act

[11]s99D CP Act

[12]s5A CP Act

[13]s132(3) CP Act

[14]s22 Child Protection Regulation 2011 (CPR)

[15]s26 of the CPR

[16]s9 Human Rights Act 2019

[17]s13 Human Rights Act 2019

[18]s48 Human Rights Act 2019

[19]s58 Human Rights Act 2019

[20]s15 Human Rights Act 2019

[21]s28(3) QCAT Act

[22]s25 Human Rights Act 2019

[23]s26 Human Rights Act 2019

[24]s26(2) Human Rights Act 2019

[25]PKS85 page 456 Paediatrician1 28 November 2018

[26]PKS80 – 81 pages 449 -451 Paediatrician1 6 April 2016 and 30 May 2017

[27]DCSYW page 303 9 April 2019

[28]S89 Child Protection Act Qld 1999

[29]S122 Child Protection Act Qld 1999

[30]S139 Child Protection Act Qld 1999

[31]Harm Report and Assessment and Outcome Respondents Submissions pages 130 to 170 June 2019. Independent Carer Capacity Assessment of RE and RL report 9 April 2019 DCSYW pages 1 – 10

[32]OPG Vol 1 page 68. Exhibit 1

[33]PKS 67 page 419 - 420 Statement of Children’s Psychologist1 10 June 2019

[34]PKS 76 page 440 - 442 11 June 2019

[35]PKS 72 page 432 -433

[36]PKS 78 page 445 11 July 2019

[37]PKS 69 pages 425 -426 6 June 2019

[38]Affidavit of CSO1 DCSYW page 319 – 321 6 February 2019

[39]Carer Assessment Reports 8 and 9 April 2019

[40]Page 1 - 29 Statement of Children’s Psychologist1 31 January 2015

[41]Court Services representative handed Affidavit material to the Tribunal that included previous Carer Assessment reports

Close

Editorial Notes

  • Published Case Name:

    RE and RL v Department of Child Safety, Youth and Women

  • Shortened Case Name:

    RE v Department of Child Safety, Youth and Women

  • MNC:

    [2020] QCAT 151

  • Court:

    QCAT

  • Judge(s):

    Member Murray, Member Allen, Member Garner

  • Date:

    29 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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