LPO & CAQ v Director of Child Protection Litigation
[2016] QCHC 18
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- LPO & CAQ v Director of Child Protection Litigation[2016] QCHC 18
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LPO & CAQ v Director of Child Protection Litigation[2016] QCHC 18
LPO & CAQ v Director of Child Protection Litigation[2016] QCHC 18
CHILDRENS COURT OF QUEENSLAND
CITATION: | LPO & CAQ v Director of Child Protection Litigation & Anor [2016] QChC 18 |
PARTIES: | LPO and CAQ v DIRECTOR OF CHILD PROTECTION LITIGATION and LYRENE WIID |
FILE NO: | 2958/15 |
DIVISION: | Children’s Court of Queensland |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Children’s Court, Gladstone |
DELIVERED ON: | 30 November 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 November 2016 |
JUDGE: | Farr SC DCJ |
ORDER: | The appeal is dismissed |
CATCHWORDS: | APPEAL – CHILD PROTECTION – appeal pursuant to s 117(2) of the Child Protection Act 1999 (Qld) – where long term guardianship order made – whether error by learned magistrate in the court below. Child Protection Act 1999 (Qld) ss 5B, 10, 59, 104, 120 Allesch v Maunz (2000) 203 CLR 172 ASW & ECW v Director General, Department of Communities (Child Safety) [2011] QChC 23 Director of Child Protection Litigation v PAV & HOK (No. 2) [2016] QChC 14 Fox v Percy (2003) 214 CLR 118 House v R (1936) 55 CLR 499 JP v Department of Communities, Child Safety and Disability Services [2015] QChC 4 |
COUNSEL: | R Raiti, solicitor for the appellant |
SOLICITORS: | Raiti Lawyers for the appellant |
- [1]This is an appeal against a child protection order made in the Magistrates Court at Gladstone on 28 May 2015 granting long term guardianship to the Chief Executive in relation to the children of the appellants: CIW (DOB: 07/08/04), JKM (DOB: 09/10/06), LNJ (DOB: 14/12/09), WCJ (DOB: 10/09/10) and KBA (DOB: 07/11/13).
Grounds of appeal
- [2]The grounds of appeal are:
- The learned magistrate erred and did not take into consideration that less intrusive grounds such as a short term order be made instead of a long term order.
- The learned magistrate erred by s 10 Child Protection Act 1999 – “children have suffered significant harm” Should the children return to the first and second appellants and the first appellant cannot cope or fail to look after children, would the children suffer significant harm if the children are returned to the Department of Child Safety?
- The learned magistrate erred by not taking into much consideration under s 59(6) Child Protection Act 1999 – that both the first and second appellants are able and willing parents to protect the children within the foreseeable future.
- The learned magistrate erred by not taking into much consideration s 5B(b) Child Protection Act 1999 - children’s family have the primary responsibility for the children’s upbringing, protection and development; (c) the preferred way of ensuring a child’s safety and wellbeing is through the child’s family.
- The learned magistrate erred by not taking into much consideration the children’s wishes, especially CIW and JKM.
- The learned magistrate erred by not taking into much consideration the long term housing stability of the first and second appellants and the negative drug analysis tests.
- The learned magistrate erred by not taking into much consideration the various courses that have been completed by the first and second appellants.
The law
- [3]An appeal against a child protection order under the Child Protection Act 1999 (Qld) (“the Act”) is by way of a “rehearing” and the appellate court is required to conduct “a real review of the hearing and of reasons.”[1]
- [4]The appellant is required to establish on appeal “some legal, factual or discretionary error” at first instance by the primary court.[2] In respect of any exercise of discretion by the learned magistrate, error is established if there has been a failure to “take into account some material consideration.”[3]
- [5]The appeal must be decided on the evidence that was before the Children’s Court constituted by the magistrate.[4]
- [6]In exercising its jurisdictional powers, a Children’s Court must have regard to the principles set out in ss 5A–5C of the Act and must state its reasons.[5]
- [7]Pursuant to s 5A, the “main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount.” Section 5B sets out “general principles for insuring the safety, wellbeing and best interests of a child.” Section 5C is of no relevance as it is concerned only with Aboriginal and Torres Strait Islander children.
- [8]Pursuant to s 105(2) of the Act, the court need only be satisfied of a matter on the balance of probabilities.
- [9]Before a child protection order can be made, the court must be satisfied that compliance has occurred with the provisions of s 59(1)(a),(b) and (c) of the Act.
Facts
- [10]LPO has a long history of contact with child welfare departments in Queensland and New South Wales.[6] Part of this history records that her three eldest children were taken into care in New South Wales. There is a significant history of child protection concerns relating to LPO dating back to 2001.[7]
- [11]On 8 March 2011, as a result of identified child protection concerns, the Department entered into an “Intervention with Parental Agreement” (“IPA”)[8] for a period of six months.[9] The concerns identified at that time were homelessness, domestic violence and LPO’s use of alcohol while the children were in her care. On 29 September 2011 the IPA was extended for a further six months. While this IPA was in place LPO was assaulted on 25 November 2011 by CAQ, after which, LPO obtained a domestic violence order.[10] On 28 May 2012 an incident involving police occurred in front of the children during which CAQ was forcibly removed and restrained by police.[11] The children were removed from the care of the parents on that date. On 1 June 2012 an application was filed in the Children’s Court seeking orders granting custody of the children to the Chief Executive. Those orders were made by consent and they expired on 27 August 2014.[12] On or about 1 May 2014, an application was filed to amend the existing orders seeking short term custody orders of the children until 31 December 2014 to implement a transition plan.[13] That application was subsequently amended to an application seeking long term guardianship of the children to the Chief Executive.
- [12]The evidence before the Children’s Court magistrate was voluminous involving affidavits from many people, as well as oral evidence from 16 witnesses plus the oral evidence of both appellants.
- [13]The appellants have not disputed the facts as relied upon by the magistrate when reaching his decision, but rather, have submitted that he made errors of law or discretionary errors as particularised in the grounds of appeal. In fact, neither the appellants nor the respondent have summarised the facts in their Outlines of Submissions. Given the nature of the grounds of appeal, I am not being critical in that regard. It is a reasonable approach in the circumstances. For the same reason, I do not intend to summarise the evidence in this decision. Suffice to say that the magistrate accepted that the children, the subject of this matter, had been exposed to behaviours such as:
“…instability of living arrangements; conflict leading to domestic violence; the exposure of their children to that conflict and domestic violence; inappropriate, haphazard and inconsistent home life evidencing a lack of routine and stability; an inability to effectively parent; leaving the children unattended; lack of supervision leading to roaming; not providing the children with adequate food; transience, homelessness; illicit drug use, misuse; exposure of the children to drug use; exposure of the children to violence to siblings; inconsistent school attendance; neglect, as an example, not changing the children in infancy; lack of positive family network; lack of any other support network; negative peer and family relationships marked by pro-criminal behaviours predominantly in the context of drug use.”[14]
- [14]The magistrate’s satisfaction about these matters was well-supported by the evidence and is not the subject of criticism.
- [15]The learned magistrate also noted that at the time of the hearing, the two older children were in a residential care facility overseen by Anglicare and that JKM was settling in well and was developing a close relationship with CIW. His Honour also noted that the evidence demonstrated that the two girls had stability in that placement; that the placement will continue as required; a routine has been established; the siblings are getting on better; there has been a decrease in troubling behaviours; there is stability in staffing and it provides a positive environment for the children.[15]
- [16]His Honour noted that LNJ and WCJ continue to reside together in the same foster care placement and their carers are committed to their long-term care. He also noted that KBC was taken from the appellants as soon after his birth as the department learned of it. That birth occurred at home, with no medical assistance and when taken into care he was jaundiced, had increased blood levels and respiratory rate and was showing symptoms of sepsis, which was perhaps caused by the umbilical cord being cut with an unsterilized pair of scissors.[16]
Consideration of grounds of appeal
- [17]I turn now to consider the grounds of appeal.
Ground One
- [18]The appellant has submitted that the magistrate did not take into consideration the possibility of a less-intrusive order.
- [19]I do not agree.
- [20]The case for the respondent to this appeal, as was presented to the magistrate, was to the effect that a less-intrusive order than that sought would not be sufficient to secure the protection that was sought to be achieved. In fact, in the course of his remarks, the learned magistrate said:
“I find the protection sought by the orders is unlikely to be achieved by an order of less intrusive terms. In that regard, I am not satisfied the issues can be adequately addressed during a short-term child protection order, having regard to the limited progress made to date. Also, I find there is no parent able to protect the children within the foreseeable future, and the children’s needs for emotional security will be best met in the long term by making the orders sought.”[17]
- [21]It follows, that contrary to the appellants submission, the magistrate not only did take into consideration the possibility of a less-intrusive order, but he expressly identified that fact in the course of his remarks.
- [22]This ground of appeal has no merit and I cannot fault the magistrate’s logic in arriving at that conclusion given that the evidence in support of such a conclusion was overwhelming.
Ground Two
- [23]This ground is difficult to understand, but I decipher it to mean that:
- the magistrate erred by concluding that the children have suffered significant harm; and
- the magistrate should have made a short-term order, because if it failed, the children would not suffer significant harm as a consequence.
- [24]As to the second of those submissions, it is really just another way of saying that a less-intrusive order should have been made. As I have already noted, the magistrate’s conclusion to the contrary was well-founded and almost inevitable in the circumstances. In that regard I also note that the independent children’s representative submitted that a long-term order was required in the circumstances.
- [25]As to the first submission, “harm” is defined in s 9 of the Act as:
“Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.”
- [26]Section 10 of the Act provides:
“A child in need of protection is a child who:
- has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and
- does not have a parent able and willing to protect the child from harm.”
- [27]
“[26] “Significant harm” requires probative evidence, on the balance of probabilities, of not insignificant or trivial harm, sufficient to justify the intervention of the State to remove a child from the custody and guardianship of their parents. The risk needs to be assessed at the point at which protective intervention was initiated, and where the child is not in the parent/guardians care at the child protection hearing, requires an examination of the anticipated risk, which must be more than a bare possibility of significant harm. A child may still be exposed to a significant risk of harm ‘where the parent does not have the capacity to care safely for the child, despite a desire to do so.’
[27] In short, a court assessing a child protection application needs to assess the nature and degree of the risk, in the context of the harm that may be caused, and decide whether, in the light of that assessment, the state should intervene and remove a child from the custody and guardianship of the parents.”
- [28]The learned magistrate correctly addressed this issue in his decision and applied the appropriate test. He said:
“I have no difficulty in concluding the children were subjected to significant harm comprising physical, psychological or emotional abuse or neglect and were at an unacceptable risk of significant harm when in the care of LPO and CAQ, having regard to s 9 and 10 of the Act.”[19]
- [29]As I have already stated, there was abundant evidence upon which to base such a conclusion.
Grounds 3, 6 and 7
- [30]The appellants submit that the magistrate erred by giving inadequate consideration to both their ability and willingness to protect the children within the foreseeable future and the progress they have recently made in potentially improving their parenting skills.
- [31]Once again however, that submission is not borne out when one considers remarks made by the magistrate in the course of his reasons, where his Honour went through the history of the parent’s interactions with child protection authorities over a lengthy period of many years in two states, detailed the nature of the failings of the parents relevant to the children, and identified the steps the appellants have taken in recent times in an attempt to demonstrate that they will be able to provide care in the future such that the children will not be at risk of significant harm.
- [32]There is no submission that the magistrate overlooked or failed to give adequate consideration to any particular piece of evidence – nor could there be. His Honour fairly addressed the issue and, in my view, took all relevant considerations into account. Quite correctly, his Honour said:
“I consider it is particularly relevant to consider the past conduct and behaviours in providing a context for the claimed ability of the parents to now adequately care for their children.”[20]
Ground 4
- [33]The appellants have submitted that the magistrate failed to give adequate consideration to the provisions of s 5B(b) and (c) of the Act.
- [34]Section 5B(b) and (c) states:
“(b) a child’s family has the primary responsibility for the child’s upbringing, protection and development;
(c) the preferred way of ensuring a child’s safety and well-being is through supporting the child’s family.
- [35]Whilst it is true to say that the magistrate did not specifically refer to either subsection in the course of his remarks, that is unsurprising given the conclusions he reached. Having concluded that the children were at an unacceptable risk of significant harm if they were returned to the appellants care and custody, s 5B(b) and (c) lose significance and relevance.
- [36]There is no merit to this ground.
Ground 5
- [37]The appellants also allege that the magistrate erred by giving inadequate consideration to the wishes of the children, especially CIW and JKM.
- [38]I note though, that the children’s Separate Legal Representative submitted in the court below that limited weight should be placed on the wishes of the children. His Honour recognised that “what a young child wishes for may not necessarily be in the best interests of the child.”[21]
- [39]In this matter, given the risk of substantial harm that a child would suffer if returned to the appellants, the learned magistrate’s decision to not act upon the children’s wishes is understandable, reasonable and appropriate.
Conclusion
- [40]In his decision, the learned magistrate carefully considered both the written and oral evidence before the court. Given the nature of that evidence, it was open to him to conclude, on balance of probabilities, that the children were in need of protection and that a long-term guardianship order was the least intrusive order necessary to secure that protection.
Order
The appeal is dismissed.
Footnotes
[1] JP v Department of Communities, Child Safety and Disability Services[2015] QChC 4 at [7] applying Fox v Percy (2003) 214 CLR 118 at [25].
[2] Allesch v Maunz (2000) 203 CLR 172 at [23].
[3]ASW & ECW v Director General, Department of Communities (Child Safety) [2011] QChC 23, at [20] and [23] applying House v R (1936) 55 CLR 499; Director of Child Protection Litigation v PAV & HOK (No. 2) [2016] QChC 14 at [15].
[4]Section 120(2) of the Act.
[5]Section 104 of the Act.
[6]Exhibit B to the affidavit of Ryan Hooson.
[7]Exhibit B to the affidavit of Ryan Hooson.
[8]Part 3B Chapter 2 of the Act.
[9]Paragraph 22 of the affidavit of Ryan Hooson.
[10]Paragraph 24 of the affidavit of Ryan Hooson.
[11]Paragraph 25 of the affidavit of Ryan Hooson.
[12]Paragraph 27 of the affidavit of Ryan Hooson.
[13]Paragraph 6 to the affidavit April Morrison of 9 September 2014.
[14]Transcript of decision p 3, ll 19-30.
[15]Transcript of decision p 4, ll 2-6.
[16]Transcript of decision p 10, ll 23-38.
[17]Transcript of decision p 12, ll 30-40.
[18][2011] QChC 23.
[19]Decision p 2, ll 34-37.
[20]Decision p 3, ll 39-42.
[21]Transcript of decision p 12, ll 18-19.