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- Mary Boland (a pseudonym) v Director of Child Protection Litigation[2023] QChCM 6
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Mary Boland (a pseudonym) v Director of Child Protection Litigation[2023] QChCM 6
Mary Boland (a pseudonym) v Director of Child Protection Litigation[2023] QChCM 6
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Mary Boland (a pseudonym) v Director of Child Protection Litigation [2023] QChCM 6 |
PARTIES: | MARY BOLAND (Applicant) v DIRECTOR OF CHILD PROTECTION LITIGATION (Respondent) |
FILE NO: | Mount Isa CCM 150/32 |
PROCEEDING: | Application for an Interim Order for Contact, s 68(1)(c) |
COURT: | Children’s Court, Mount Isa |
DELIVERED ON: | 10 July 2023 |
DELIVERED AT: | Mount Isa |
HERAING DATES: | 16 June & 6 July 2023 |
MAGISTRATE: | E. Mac Giolla Rí |
ORDER: | The application is granted |
APPEARANCES: | A Prihar, Solicitor for the Applicant. F Herbert, Solicitor, DCPL for the Respondent Joanne Brennan, Solicitor as Child Advocate |
- [1]This is an interim application for contact in a child protection proceeding concerning the child, Oliver Boland (‘Oliver’).[1]
- [2]The substantive proceeding relates to an application by the Director of Child Protection Litigation for custody of Oliver for two years.
- [3]Oliver is a 14 year-old indigenous boy. Oliver has been diagnosed with FAS-D, ADHD and has a mild intellectual impairment. A close family relative, Ms Boland, has been Oliver’s primary carer since he was 8 months old. Although the substantive application names Oliver’s parents as respondents, the only active participant in the litigation is Ms Boland. Ms Boland, though not strictly speaking a parent, is a party to the proceedings.[2]
Child Protection Concerns - Generally
- [4]Child Safety’s concerns in relation to Oliver are that Ms Boland has neglected him and subjected him to emotional abuse and physical abuse (in the form of excessive discipline). That abuse and neglect is said to have resulted in or contributed to Oliver committing serious criminal offences over an extended period.
- [5]Child Safety contends that Oliver’s offending results in a substantial risk of physical harm to Oliver from being in stolen cars and/or retaliation by victims of his property offending and offending against the person.
- [6]The risks are, of course, broader than that because Oliver also risks the trauma and ongoing social isolation caused by detention, where a lack of staff results in detainees being isolated in their cells for extended periods of up to 24 hours a day but often averaging out at approximately 21 hours per day.[3]
Interim Application
- [7]Ms Boland brings this interim application for an order granting her full-time contact with Oliver. Ms Boland does not challenge an interim order giving custody to Child Safety.
- [8]If Ms Boland’s application is successful Child Safety will retain custody of Oliver but he will, for many practical purposes, be in Ms Boland’s care.
- [9]This would seem a highly unusual result in circumstances where Ms Boland concedes that Child Safety should retain custody but I have jurisdiction to make such an order pursuant to s 68(1)(c).[4]
- [10]Ms Boland contends that Child Safety cannot adequately care for Oliver and, if Oliver is left in Child Safety’s care, he will continue to offend and continue to experience the harm associated with offending and detention.
- [11]Child Safety contends that while Oliver was in Ms Boland’s care, Oliver experienced neglect and abuse and that Child Safety is better placed to care for Oliver and to prevent him from re-offending.
Specifics of Child Safety Concerns
- [12]The Director submits that:
- a.Ms Boland does not engage appropriately with support agencies and, on occasion, will actively obstruct agencies who could assist her in caring for Oliver;
- b.Ms Boland has, herself, said that she no longer wishes to care for Oliver;
- c.Ms Boland has used violence and verbal abuse against Oliver;
- d.Ms Boland is too focused on gambling to properly care for Oliver;
- e.Ms Boland’s health is such that she is unable to adequately monitor Oliver’s behaviour;
- f.Ms Boland has failed to ensure that Oliver goes to school and has prevented Oliver from attending school;
- g.Ms Boland has failed to ensure that Oliver receives appropriate care for his various cognitive and mental health diagnoses. A feature of this failure is her failure to exhaust Oliver’s NDIS budget, which remains largely unspent, despite Oliver’s obvious needs.
- h.The other people who frequent Ms Boland’s home create additional risks to Oliver through substance abuse, violence and mental instability;
- i.Ms Boland has demonstrated an inability to manage Oliver’s challenging behaviours;
- j.Ultimately, while in Ms Boland’s care, Oliver’s offending has escalated to the point where he is regularly committing serious offences against property and offences against the person. As a result, Oliver has spent large parts of his life in detention. Between May 2018 and December 2022 Oliver was in a detention centre on eleven occasions and in a watchhouse on forty occasions.[5] Oliver’s offending is now closely related to his abuse of alcohol, which Ms Boland’s care has not prevented.
- [13]In her affidavit filed 14 April 2023 Ms Boland responds as follows:
- a.Ms Boland denies aspects of Child Safety’s allegations in relation to her failure to co-operate with government agencies;
- b.Ms Boland agrees that she has, on occasion, said that she no longer wishes to care for Oliver but that she has never meant it and only said it at times of extreme frustration and that such comments are merely a “phrase of speech” she uses;
- c.Ms Boland denies that she is verbally abusive to Oliver or that she uses violence towards him. In particular, she denies the allegation that she was convicted of assaulting him in 2019, saying that although she has a conviction for common assault in 2019, that conviction related to a different person.
- d.Ms Boland asserts that she stopped gambling in 2021, after a family member passed away.
- e.Ms Boland agrees that she has major health concerns but denies that those concerns would substantially impact on her ability to care for Oliver;
- f.Ms Boland denies that she has unreasonably prevented Oliver from going to school but has, rather, tried to get various agencies to help prepare Oliver for school before he is enrolled. Ms Boland says that, knowing Oliver, he will escalate and leave school if he can’t cope with the work;
- g.Ms Boland asserts that she has taken Oliver to health appointments, but appointments are often frustrated by Oliver’s return to detention;
- h.In relation to the safety of her home, Ms Boland has recently moved to her own 2-bedroom unit in a complex belonging to a community organisation;[6]
- i.Ms Boland concedes an inability to manage Oliver’s behaviours but, in this interim application, asserts that neither can Child Safety and she relies on the events leading up to Oliver’s most recent period of detention in support of that position;
- j.Ms Boland agrees that Oliver’s offending is out of control. In her interview with two officers from Child Safety on 24 January 2023, Ms Boland said that she had missed Oliver’s last five Christmases because he was in detention and that she is sick of it but can’t give up on him. She asserts she is opposed to his consumption of alcohol.
Interim findings in relation to child protection concerns
- [14]It is not necessary for this interim application to resolve all the matters that are in contention between Ms Boland and Child Safety but an assessment of the general merits of the case is necessary.
- [15]Engagement with Services: I am cautions about the assertions about Ms Boland’s obstructive conduct. One of the allegations is that Ms Boland puts her anger at Child Safety above Oliver’s needs in that she told Child Safety that she would not call Oliver while he was in care.[7] That assertion is unlikely to be correct or at least, if it is a correct record of the conversation, did not reflect Ms Boland’s true intentions because she became aware of Oliver’s car crash by calling his residential care home.[8] Nevertheless, I find that Oliver has not engaged appropriately with services and Ms Boland is, ultimately, responsible for that. I find that Ms Boland tends to absolve herself of responsibility for any deficiencies in this aspect of her care for Oliver, asserting, for example, on 14 October 2022 that various tasks should be undertaken by Youth Justice rather than herself.[9] I note, however, that Oliver’s frequent periods of detention will have interfered with Ms Boland’s ability to get Oliver to appointments.
- [16]Desire to relinquish custody of Oliver: Ms Boland accepts that she made these statements. I accept that statements renouncing Oliver were said in extreme situations though I find it likely that Oliver became aware of these statements and that this will have caused him distress.
- [17]Violence and Verbal Abuse against Oliver: The 2019 assault on Oliver is unproven at this point, there being no source material to challenge Ms Boland’s denial. Nevertheless, I find that Oliver is quite violent and that it is likely that he has learned that behaviour either from Ms Boland or from those who lived with or visited her. In infer that Oliver has been subjected too and witnessed considerable violence in his life with Ms Boland. Ms Boland also admits to having struck Oliver recently in the presence of police, though police took no action as the blow was in self-defence. Ms Boland also admits striking Oliver when he was spitting at a security guard at a shopping centre. I find it likely that violence was used as a form of discipline by Ms Boland. Nevertheless, it seems to me that, as Oliver’s offending has escalated to serious offences against the person, violence by Ms Boland towards Oliver has become a very remote child protection concern. A more likely risk might be Oliver inflicting violence on Ms Boland. This has occurred in the past.[10]
- [18]Gambling: Ms Boland says that she stopped gambling two years ago but in an interview with two Child Safety officers on 15 September 2022 Ms Boland said she basically lives for gambling.[11] By way of example, Ms Boland said that on one occasion she has gambled all night and then gone straight to a medical procedure, at which she slept and has then returned immediately to gambling. I find that Ms Boland is likely to be gambling still and that such a focus on gambling is likely to have adverse consequences for Oliver because Ms Boland will have less time to focus on his needs and there is a real danger Ms Boland’s household will encounter financial difficulties as a result.
- [19]Ms Boland’s health concerns: I find that other matters being equal Ms Boland’s health concerns need not make her an inappropriate person to care for Oliver but the health concerns are likely to make a hard job even harder. The frequent medical procedures she requires would mean that she is unavailable to care for and supervise Oliver. I note that in September 2021 Ms Boland said to Child Safety, words to the effect of, “I’m sick and I can’t do it” in relation to caring for Oliver.[12] I have no evidence that Ms Boland’s condition has improved since that time.
- [20]School attendance: I am unable to make a finding that Ms Boland unreasonably prevents Oliver from attending school. Oliver himself is said to been so frustrated with Ms Boland that he self-enrolled in 2021[13] but I cannot find a source document for this assertion in the material. On the other hand, in 2021 Ms Boland had proposed that Oliver attend a particular school.[14] Ultimately, however, Ms Boland is responsible for getting Oliver to school and he has not been to school for years. Whether he fails to attend school as a result of neglect or design, the result is the same.
- [21]Health appointments: I find Ms Boland unreasonably delegates her responsibilities to Youth Justice and other agencies[15] and finds fault with offers of assistance.[16] This pattern is consistent with Child Safety’s assertion that Ms Boland does not take responsibility for getting Oliver to appointments.
- [22]Safety of Ms Boland’s Home: I find that in the past Ms Boland’s living arrangements in ‘drinking houses’ exposed Oliver to violence and substance abuse and made Oliver’s habit of wandering the streets at night entirely understandable. Other matters being equal, I find that her recently established new accommodation, in her own two-bedroom unit, is suitable and safe.[17] There was some uncertainty in the hearing as to whether Ms Boland needs permission to have another person share the unit with her. In circumstances where there are two bedrooms available to her in the unit, the second bedroom suggests that a second person is a given. It is possible that the community organisation providing the unit will not want a person with Oliver’s criminal history staying at the unit and may take steps to remove him. I find that this is possible but unlikely.
- [23]Managing Oliver’s behaviours and criminal offending: At age 8 Oliver was putting holes in the walls of his home. His behaviour may have escalated since then. I find that any individual or organisation tasked with caring for Oliver will struggle. Child Safety asserts that Ms Boland has demonstrated that she is not able (or willing) to control Oliver’s behaviours. Ms Boland asserts that events since Oliver went into the care of Child Safety in March this year demonstrate that Child safety is not able to control Oliver’s behaviour. I will now turn to examine those events and their implications for this interim application.
Events since Oliver was taken into care
- [24]On 7 March 2023 Oliver was granted bail in Mount Isa Children’s Court on offences involving serious interpersonal violence. Evidently, Oliver had been expecting to return to Mount Isa when he was granted bail.[18] On the same day Child Safety obtained a Temporary Custody Order placing Oliver in their care. That order was obtained from a Magistrate sitting in a different location.
- [25]On going into Child Safety’s care, Oliver was placed in a residential care home (‘Resicare A’) in a town many hundreds of kilometres from Mount Isa. He remained at Resicare A for only three days before being moved to a different residential care home in the same town on 10 March 2023 (‘Resicare B’). By 21 March 2023 Oliver was back in detention as a result of being charged with the extremely serious offences: Enter Dwelling, Robbery with Actual Violence and Stealing.[19] He remains in detention.
- [26]On or about 13 March 2023, Ms Boland was advised that Oliver had been in a car accident. Details of this incident are not set out in the material but, based on Oliver’s criminal history, his age and the absence of evidence of contact with family (or any other legitimate car owner) at that time, I infer that this car crash was in a stolen vehicle.
- [27]At the time he committed the offences noted in the two paragraphs above, Oliver was in the care of the Department and nominally living in Resicare B, though it appears he had left after an unspecified period of time. It appears that Oliver committed these offences to go back to detention because he did not like being in the town in which he was placed and preferred to return to detention.
- [28]This disclosure was made to a worker at the detention centre who did CHART with Oliver. Oliver’s performance in CHART was one of the positives about his behaviour during his most recent period of detention. I infer that there was a degree of trust between Oliver and this worker.
- [29]His assertion about his reasons for offending are recorded as follows:
“During his most recent release, Oliver absconded from placement and re-offended. Oliver has articulated to YDC CW that he re-offended as he did not want to be in [Name of town of placement].”[20]
and
“Oliver is very keen on changing his habits, he was looking forward towards going back from [name of town] to Mt Isa which unfortunately did not happen. He clearly states that he doesn’t want to be [in the town] and he admitted to purposely commit another offence to get back to YDC”[21]
- [30]I am conscious that it is possible that Oliver may have been rationalising his detention after-the-fact, but this statement is in line with his consistent position that he does not want to be in care and wants to go back to Ms Boland and Mount Isa. Considering the plain language of the statement, the context in which the statement was made, how quickly after release the offences were committed and Oliver’s intellectual limitations, I find that there is a high likelihood that Oliver committed the most recent offences because he did not want to be away from Mount Isa and/or in Resicare B.
Placement proposed by Child Safety
- [31]Child Safety’s plan on Oliver’s eventual release from detention is to house Oliver at Resicare B but this time with a 1:1 ratio for Oliver, that is, there would be a worker dedicated exclusively to working with Oliver. This is different to his last placement at Resicare B where there was a 2:1 ratio of children to carers.
- [32]Resicare B is an emergency placement[22] in the nature of a shelter rather than a home. I understand that at some point in the future there may be a ‘better’ placement available for Oliver but I think it unlikely that Oliver would still be in the community at that future time.
- [33]I note that Child Safety has made some progress in trying to arrange appointments for Oliver with his NDIS psychologist and forensic mental health services.[23]
- [34]Based on what happened on the last occasion Oliver was released from detention into the care of Child Safety, it is highly unlikely that Oliver will stay at Resicare B and he is highly likely to commit a further offence for the purposes of being returned to detention.
- [35]I understand that there is no placement available to Child Safety for Oliver in Mount Isa and no ‘better’ placement available elsewhere for him.
No evidence to support the efficacy of residential care in preventing offending
- [36]I was concerned that Oliver returned to offending so quickly after he was placed in the care of Child Safety. In the course of this litigation I asked the Director for any available evidence in relation to the efficacy of residential care in general and, in particular, the performance of the particular residential care home planned for Oliver’s placement on release. The purpose of that request was to understand how effective Oliver’s placement would be at caring for Oliver and how effective the placement would be at preventing Oliver from offending.
- [37]In response I was advised as follows:
“The Office of the Chief Practitioner[24] was contacted on 16 June 2023 requesting data and statistics relating to children being placed in residential placements. Advice received on 19 June 2023 indicated data, such as that requested by The Court is not currently held and therefore not available.”[25]
- [38]In short, there is no data to support efficacy of the model of care suggested by the Director for Oliver or at all. Equally, there is no data to support the efficacy of any other model of residential care that may be available to Oliver or to any other child.
Discussion
- [39]Ms Boland no longer poses a danger to Oliver in the way she may have when he was younger. There is a near negligible risk of Oliver being struck or spoken to in a way that is likely to further harm him. Equally, in her new accommodation Ms Boland is unlikely to expose Oliver to the substance abuse, violence, emotional trauma and general instability which characterised his upbringing in ‘drinking houses’.
- [40]The principal threat to Oliver’s wellbeing is that he will continue to offend. In light of the serious risks to his welfare caused by his offending, all other child protection concerns combined are relatively minor. Put bluntly, for the purposes of these proceedings, the outcome that is in Oliver’s best interests is the outcome that minimises his risk of offending.
- [41]Returning Oliver to Ms Boland’s care through the proposed contact order is a very bad option for limiting Oliver’s risk of reoffending because:
- a.I have found, above, that many of the Director’s submissions about Ms Boland’s inadequacy as a care giver are correct;
- b.Oliver’s offending started and escalated under Ms Boland’s care;
- c.Oliver’s behaviours have not improved and he remains a risk to himself and others;[26]
- d.Ms Boland has limited skills with which to manage Oliver’s challenging behaviours; and
- e.Ms Boland’s health concerns will limit her ability to parent Oliver appropriately and, in the past, Ms Boland has often done less than she was capable of to manage Oliver’s challenging behaviours.
- [42]However, I find that not granting 24/7 care to Ms Boland will, effectively guarantee that Oliver will reoffend in a way that will return him to detention because:
- a.On the last occasion Oliver was in Resicare B he absconded and re-offended almost immediately;
- b.Oliver will re-offend to go back to detention because this is the plan he executed when last released from detention in the care of Child Safety;
- c.I have no evidence that the proposed limited changes to the model of care at Resicare B will change the outcome;
- d.Child Safety has no data to support the model of care proposed by the Director.
- [43]In summary, having Ms Boland care for Oliver is a bad option but having Oliver in the Resicare B would, in my view, be worse for Oliver.
Legal principles
- [44]The onus or proof is on the applicant in this matter, Ms Boland.
- [45]I have had regard to the principles in the Child Protection Act, in particular:
- a.The paramount principle is that I must decide this matter in accordance with Oliver’s best interests;
- b.The principles emphasises the importance of family as primary caregivers and extended family as the first option for alternative care givers. Family must be supported to care for the child children and family are the most likely to be able to assist the child to remain connected to cultural and ethnic identity;
- c.The Act’s preference for long term solutions for the child’s care;
- d.The principle at s 5B(j): a child should only be placed in the care of a parent or other person who has the capacity and is willing to care for the child;
- e.The principles for indigenous children, such as Oliver and in particular s 5C;
- f.The need to take the child’s views and wishes into account[27];
- [46]I have given some thought to whether I should disregard, as a matter of principle, the fact that Oliver will reoffend if released into the care of Child Safety, in effect, to avoid the consequences of the Court’s order that he be in the care of Child safety. I considered that there is a risk that giving weight to this factor might bring the Court into disrepute because giving it weight could lead to the perception that the Court is bowing to a threat to its authority.
- [47]I have concluded that, despite this concern, I should give appropriate weight to the fact that Oliver will reoffend in order to go back into detention to avoid being in Child Safety’s care because:
- a.There is no actual threat in the sense that Oliver is demanding X so that the Court will do Y. The conclusion that he will deliberately reoffend in order to go back to detention is based on an objective examination of past events rather than a threat.
- b.If I failed to give it weight, I would be at risk of disregarding the paramount principle and the other principles in the Act.
Decision
- [48]I find that the applicant has proved that the making of the proposed order for contact in favour of Ms Boland, allowing Oliver to reside with her, is better for Oliver’s interests and more consistent with the principles in the Act when compared to the only other option currently available, namely placing Oliver in Resicare B.
- [49]Custody remains with Child Safety so there is a reasonable prospect that Child Safety will be able to continue to make appropriate referrals for Oliver’s various social and medical needs.
- [50]I propose that the orders will enable Child Safety to have contact Oliver and will allow for medical examination and treatment of Oliver.
- [51]I will hear the parties on the terms of the order.
Footnotes
[1] Oliver Boland is a pseudonym, as are the names of all members of his family. Every effort has been made to anonymise these reasons to prevent the identification of the child or his family.
[2] Child Protection Act 1999, s 11
[3] Re JG [2023] QChC 5 & R v JG [2023] QChC 7. See also Commissioner of Police v David Taylor (a pseudonym) [2023] QChCM 2. I note there is evidence that Oliver attended school at least once on his most recently period in detention and is engaging well with education when he can access it, Affidavit of Ms Wicks, 21 April 2023 at [27] and Exhibit 1.
[4] As discussed in The Department of Communities, Child Safety v M and S [2013] QChC 27
[5] Affidavit of Ms Wicks, 28 March 2023 at exhibit 66. Oliver returned to detention in March this year and remains in detention at the time these reasons are published.
[6] That information was provided orally in the course of submissions by her solicitor Mr Prihar on 16 & 29 June 2023.
[7] Affidavit of Wicks, 28 March 2023 at [28]
[8] Affidavit of Ms Boland at [7] – [13]
[9] Affidavit of Wicks, 28 March 2023 at exhibit 4
[10] Affidavit of MS Wicks, 28 March 2023 at page 248
[11] Affidavit of MS Wicks, 28 March 2023 at exhibit 4, page 70
[12] Affidavit of MS Wicks, 28 March 2023 at page 248
[13] Affidavit of Ms Wicks, 28 March 2023 at [40]
[14] Affidavit of MS Wicks, 28 March 2023 at page 249
[15] Affidavit of Wicks, 28 March 2023 at exhibit 4 and 46,
[16] Affidavit of Wicks, 28 March 2023 at exhibit 46 at 249
[17] This is consistent with exhibit 6 to Ms Fraser’s affidavit, 19 June 2023.
[18] Affidavit of Ms Wicks, 21 April 2023 at Exhibit 5, page 14.
[19] Affidavit of Ms Fraser, 19 June 2023 at [10]-[12]
[20] Affidavit of Ms Wicks, 21 April 2023 at page 15
[21] Affidavit of Ms Wicks, 21 April 2023 at page 14
[22] Affidavit of Chris Alderson, 5 July 2023 at [15], exhibit 1
[23] Affidavit of Ms Wicks, 21 April 2023 at [20] and [21]
[24] An office within Child Safety.
[25] Affidavit of Ms Fraser, 19 June 2023
[26] I refer, in part, to Oliver’s misbehaviour within the detention centre during his current period of detention, See affidavit of Ms Wick, 21 April 2023 at [23] (c) & (e) and exhibit 1.
[27] In the course of proceedings I heard directly from Oliver (by video link from detention) and the separate representative on his behalf that he does not want to be in the care of the Child Safety.