QB v Minister for Community Services [2005] NSWADT 89 (27 April 2005)

Last Updated: 27 April 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: QB v Minister for Community Services [2005] NSWADT 89


PARTIES: APPLICANT
QB
RESPONDENT
Minister for Community Services



FILE NUMBERS: 044011, 044019

HEARING DATES: 8/12/2004, 10/12/2004 & 13/12/2004

SUBMISSIONS CLOSED: 03/01/2005



DECISION DATE: 27/04/2005

BEFORE: Britton A - Judicial MemberSmyth M - Judicial MemberNorman C - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Children (Care and Protection) Act 1987
Children and Young Persons (Care and Protection) Act 1998
Community Services (Complaints, Reviews and Monitoring) Act 1993

CASES CITED:

APPLICATION: Removal of children from authorised carer
Revocation of care authorisation

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
E Robertson, solicitor

ORDERS: The decision to remove the children the subject of this application is affirmed
The decision to revoke the Applicant’s carer authorisation is affirmed. It is recommended that the Applicant be offered further training as a potential foster carer and that she be reassessed at a suitable date in, say, 12 months time.


Reasons for Decision:

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 In January 2004 the Department of Community Services placed four siblings, who ranged in age from 12 months to 11 years, in the care of the Applicant. Six months later, the children were removed following an allegation that the Applicant had slapped the eldest child. Subsequently, a decision was made to revoke the Applicant’s authority to foster children. The Applicant seeks a review of both decisions.

2 In these reasons, because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicant or any of the children who have been in her care. The Applicant will not be referred to by name, and the children will be referred to by pseudonyms.

3 It is convenient to deal with both applications at the same time because the facts overlap.

Jurisdiction

4 The Tribunal has the power to review the decision to remove the children from the daily care and control of the Applicant (Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act), s 245 (1)(c) and the subsequent decision to cancel the Applicant’s authorisation as an ‘authorised carer’(s 245 (1)(a). (See also s 28 (1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, and s 38 of the Administrative Decisions Tribunal Act 1997 (‘Tribunal Act’).

5 Chapter 8 of the Care and Protection Act deals with "out of home" care. Section 135(1) defines "out of home care" to mean residential care and control (whether or not for fee, gain or reward) of a child or young person:

(a) at a place other than the usual home of the child or young person, and

(b) by a person, other than a parent of the child or young person, and

(c) for:

(i) in the case of any such care and control provided under an order of the Children’s Court, or by virtue of the child or young person being a protected person, a period of more than 14 days, and

(ii) in any other case, a period, or periods in the aggregate, exceeding 28 days in any period of 12 months.

6 Section 136(1) provides that out-of-home care may be provided for a child or young person only by an authorised carer. Section 137(1) defines an authorised a carer to mean:

(a) the principal officer of a designated agency, or

(b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or

(c) a person who, in accordance with the regulations, is otherwise authorised as an authorised carer.

7 The objects of Chapter 8 which deals with out of home care are set out in s 134:

(a) to create a high standard in the provision of out-of-home care, and

(b) to provide a model for the organisation of out-of-home care, and

(c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care by distinguishing between care responsibility (that is, the daily care and control of a child or young person), supervisory responsibility (that is, the supervision of those who have care responsibility) and parental responsibility.

Timing of applications

8 Decision to remove The Applicant was notified of the decision to remove the children the subject of this application by letter dated 6 April 2004. It is not entirely clear whether an internal review had been requested when the application for review of that decision was lodged with the Administrative Decisions Tribunal (the Tribunal). In any event, the decision arising from the internal review was not provided to the Applicant until November 2004.

9 Decision to revoke carer authorisation The decision to cancel the Applicant’s authorisation as an ‘authorised carer’ was made on 11 July 2004 and the Applicant was notified of that decision on or about 13 August 2004. The application to the Tribunal for review was lodged on 17 August 2004. The internal review into the decision was not finalised until 29 November 2004. (That review affirmed the original decision to remove the children and the cancellation of the Applicant’s authorisation.)

10 Section 55(1)(b) of the Administrative Decisions Tribunal Act 1997 provides that a person may apply to the Tribunal for review of a reviewable decision only if, among other things, an internal review has been finalised. Section 55(2) provides that a person is not prevented from making an application to the Tribunal in respect of a reviewable decision that has not been the subject of an internal review if it is satisfied that "it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned": s 55(2)(c).

11 The Respondent consented to both applications being determined notwithstanding the absence of internal review. We are satisfied that each application was made within a reasonable period following the decision to remove the children and that it is necessary for us to deal with the application to protect the Applicant’s interests. Accordingly, we will proceed to determine both applications.

Relevant legislative provisions

12 Section 8 of the Care and Protection Act sets out the objects of the Act:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

13 The principles to be applied in the administration of this Act are set out in s 9:

(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

(b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(c) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(f) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

Powers of Tribunal

14 The powers of the Tribunal on review are set out in the Tribunal Act, s 63. That section provides that the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

15 On review the Tribunal may decide under s.63(3):

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16 Section 64 (1) provides that in determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

Approval as Authorised carer

17 Barnados Approval In November 2001 the Applicant was assessed and approved as an "intake carer" by Barnados, Find-A-Family Centre. In a report dated 13 November 2001 which recommended that decision, Barnados employee, Sue Riley stated: "[the Applicant] has many characteristics that are valued in intake carers. It is felt that she would provide a safe, warm and nurturing environment for any child placed in her care".

18 Ms Riley recorded that the Applicant has two adult sons whom she had reared alone after leaving her husband when the boys were quite young. The Applicant maintains close relationships with her sons and has a "sense of pride in who they are and what they have achieved".

19 In Ms Riley’s opinion, the Applicant:

"would be able to work cooperatively with Barnados;

understood the importance of maintaining links with the children’s biological family;

held strong family values;

had good social supports; is "warm, tolerant, resilient, quietly confident, enjoys children, sense of humour, energetic, positive outlook on life, likes her own company, resourceful."

20 Barnados placed a seven-year-old girl, NQ, in the Applicant’s care in December 2001. During that placement a report of "risk of harm" was made. That report alleged that the Applicant had taken the child to a pub, got drunk and fell off a chair. The report was investigated and NQ remained in the Applicant’s care.

21 In September 2002 it was reported that the Applicant and the child had had an argument and after that the child had repeatedly run away. The child apparently disclosed to Barnados that this was because the Applicant was "mean". The child was removed in October 2002.

Approval as authorised carer

22 In February 2003 the Applicant applied to DoCS to be assessed as an "authorised carer". An assessment was carried out by Leslie Cormack, manager of DoCS Foster Care support, Western Sydney region, and caseworker, Blazenka Berak. In a report dated 1 April 2003, Mr Cormack and Ms Berak jointly recommended that the Applicant be approved as an authorised carer subject to the following conditions: first, that a maximum of three children be placed in her care at any one time and, second, that the children be between two and 18 years of age. The report went on to recommend that in the event IQ (a high-needs eight-year old boy who was subsequently placed with the Applicant) was placed with her no other placements were to be considered for at least two years.

23 Margi Andrew, the Manager of Support Services at Barnados, was interviewed for the purposes of DoCS’ assessment. Ms Andrew reported that the Applicant had provided "good care for a very difficult and challenging child for the first seven months of the placement" and described the Applicant as "not abusive, and was nurturing and focussed on the child". However Ms Andrew also said that the placement deteriorated after the pub incident. After that incident, according to Ms Andrew, the Applicant exhibited signs of not "being able to cope with [NQ]".

Placements made by DoCS

(i) Placement of IQ (April 2003-July 2003)

24 IQ was placed with the Applicant by DoCS in April 2003 and removed from her care in July the following year. The trigger for his removal was a report from the DoCS Helpline that the Applicant had rung requesting assistance after IQ had returned from a camp in a distressed state and asked "what would happen if she felt like killing him".

25 Before he was placed with the Applicant, IQ had been in eight different placements. He had been removed from his biological mother when he was just over twelve months of age following reports of violence and neglect. He and his sister were then placed with family friends but were removed about two years later following reports of neglect and emotional, physical and sexual abuse.

26 In a letter to the Applicant dated 23 July 2003, DoCS advised that the decision to remove IQ was made because of her "levels of stress; unresolvable issues between her and other agencies in progressing IQ’s case plan and her perception that the level of support provided by DoCS was inadequate". At the request of the Applicant, an internal review was conducted. In a report dated 12 August 2003, DoCS officer, Mr Paul Hulbert, stated that the original decision to remove IQ was correct on the information then available however, on review, he concluded that it should be varied to allow for the possibility of IQ’s return. He went on to recommend that the child be asked whether he wished to return and that the Applicant be assessed to determine whether she had the emotional ability to meet his needs.

27 Blunt report Following Mr Hulbert’s recommendation, IQ was assessed by psychologist Lucy Blunt. Ms Blunt also interviewed the Applicant and numerous people who had been responsible for aspects of IQ’s care while he was in the care of the Applicant.

28 In a 44-page report dated 10 September 2003, Ms Blunt described IQ as "a highly complex child capable of both extremely violent and calm and contained behaviour". In her view the Applicant was a committed and capable woman who had been a strong advocate for IQ. She recorded that a number of people she had interviewed had commented that the Applicant was "more impressive and committed than many other foster parents". According to Ms Blunt, conflict between the Applicant and others responsible for IQ’s care plan started to emerge when the Applicant came to realise that in practice she had little say in the significant decisions surrounding his care... [but] was required to provide day to day care... and manage the ramifications of that decision-making." She observed that while the Applicant’s commitment to providing all-round care was laudable and probably "only usually found in a natural parents looking after their biological children’s needs, her approach was difficult for the various agencies".

29 She noted that the Applicant reported that she felt unsupported as help was only available during business hours.

30 Dr Blunt reported that IQ had told her he did not want to return to the Applicant. Dr Blunt stated that it was unclear why he had come to that view and thought it possible that it was a "grief reaction" because he missed the Applicant and felt betrayed by her. Alternatively Dr Blunt thought it possible that a previous carer with whom he remained in contact had influenced IQ. Whatever the explanation, Dr Blunt took the view that IQ’s interests demanded "a highly structured environment with clear guidelines about what was expected of him and the consequences of transgressing those limits" which, in her view, the Applicant could not provide.

31 Dr Blunt agreed with Mr Hulbert’s assessment that it was unfortunate that those agencies that had raised concerns about the Applicant’s involvement in, and implementation of, IQ’s case plan had not raised these directly with her or attempted to resolve these issues before he was removed.

32 Dr Blunt concluded that it was not a viable option for IQ to return to the Applicant because of the passage of time and his wishes. She stressed, however, that this recommendation "is not about [the Applicant’s] abilities to be a department foster carer in general". She went on to recommend that because of IQ’s high needs that his care be shared between two different foster placements over a seven-day period.

33 Buchanan review Following receipt of Dr Blunt’s report, a further review was carried out by the DoCS. In a report dated 2 January 2004 caseworker, Suzanne Buchanan concluded that IQ had not been seriously physically harmed by the Applicant. While, in her view, some of the measures taken by the Applicant may have been ill-advised (such as placing IQ under a cold shower), none constituted "intentional abusive behaviour". In her opinion, the Applicant lacked the ability to manage IQ’s challenging behaviour and there was a risk that she might resort to physical discipline rather than "more acceptable measures". This according to Ms Buchanan might "result in an escalation of abusive episodes".

(ii) Placement of "Family P" Children

34 As noted, in January 2004 DoCS placed four children, two boys aged 11 (‘PI’) and nine (PJ’) and their sisters, aged eight (‘PK’) and twelve months (‘PL’) in the care of the Applicant. The decision to terminate that placement is the subject of these reasons.

35 It was a condition of the Applicant’s authority that a maximum of three children be placed in her care, none younger than two years of age. DoCS concedes that it was "unfortunate" that a placement was made that was outside the conditions of the Applicant’s authority. Apparently the placement was made because of a shortage of suitable placements at that time and the need to find urgent care for the children.

36 Immediately before being placed with the Applicant, the children had been living with their mother, who was unable to care them because she was habitually drunk. The eldest boy, PI, had the primary care and responsibility for his baby sister when he lived with his mother.

37 The trigger for the decision to remove the children was the claim by PI that the Applicant had slapped him across the face with an open hand. The children were removed on the day that complaint was made.

38 Following the removal of the children an assessment was undertaken by casework specialist, Diana Rojas. Ms Rojas had visited the children on several occasions when they lived with the Applicant. For the purposes of the assessment, Ms Rojas reviewed the Department’s file and interviewed the Applicant and all the children, except the baby. In a report dated 9 July 2004, Ms Rojas noted that when the children first went to live with the Applicant they appeared "happy and comfortable". The eldest boy was reported to have said that he wanted the Applicant to move in with his mother so that she "can teach my mum a lesson so she doesn’t get drunk".

39 Ms Rojas noted that the Applicant had demonstrated great resourcefulness throughout the placement. She managed to clothe the children and furnish their rooms on a shoestring and regularly borrowed books and toys from the local library. In addition, she encouraged the children to become involved in caring for the garden and helped them to establish their own vegetable patch. Ms Rojas also noted that the Applicant had initiated creative ways to assist the elder children organise their respective routines. In addition, she had devised and negotiated a contract with the eldest boy, who had some behavioural problems, to assist in the management of his behaviour.

40 Ms Rojas reported that the caseworker, who had supervised the placement, reported that the boys appeared happy to leave the placement but the eldest girl was more apprehensive.

41 Ms Rojas identified three reports of alleged abuse while the children were in the Applicant’s care:

Slapping incident On an access visit with his mother [23 February 2004] PI alleged that the Applicant had slapped him across the face with an open hand.

Running away incident It was alleged that on 4 March 2004 the Applicant yelled "pack your bags and fuck off" at PI. Neighbours allegedly reported that he was seen to leave the house shortly after this incident in tears and carrying his bag. The day after this incident, the children were interviewed by DoCS’ officers. At the interview, the eldest girl, PK, reported that the Applicant yelled at them and called her brother, PJ, "invisible".

Second slapping incident On 5 April 2004, PI alleged that the applicant had hit him across the face with an open hand hitting his head on the side of the bunk.

42 Ms Rojas apparently interviewed the children about a week after their removal. PI is reported to have said that the Applicant told him "she wanted to get her life back" and that she didn’t want them around any more as they had been "too naughty". Ms Rojas noted that when interviewed about the second slapping incident, PI claimed this was the first time he had been hit by the Applicant.

43 The eldest girl, PK, is reported to have said that she had not been physically disciplined by the Applicant and thought this might have been because she was "the goodest".

44 Ms Rojas reported that when interviewed, the Applicant denied all three incidents. She claimed that when the eldest boy had run away [to his mother who lived nearby] DoCS’ officers had constantly asked "had she [the Applicant] done anything to you" and that it was DoCS’ line of questioning that had elicited the damaging allegations from the children.

45 Ms Rojas reported that when interviewed, the three eldest children had said they did not want to return to the Applicant. Specifically:

The eldest boy was insistent that he did not want to return. He claimed he felt that he wasn’t wanted by the Applicant.

Both boys claimed that the Applicant consistently yelled at them.

The eldest girl disclosed that she had witnessed the Applicant hitting, choking and punching her eldest brother. She also reported that sometimes the Applicant said her youngest brother was "invisible".

46 Ms Rojas concluded that if the Applicant were to resume the care of the children, it was likely that harm would continue for the following reasons:

The Applicant does not acknowledge that the children were at risk of harm.

She did not believe the information from the reports was credible and claimed it had been "made up" by the children.

The Applicant did not agree with the children being removed from her care or have an understanding for the reasons why they were removed.

The Applicant has said that PI has taken back his allegations.

The Applicant was provided with adequate support from the Department, yet felt the support was minimal.

The Applicant has a history of using physical discipline when in stressful periods.

The children have not requested to visit the Applicant or be placed back in her care.

Revocation of Carer Authorisation

47 By letter dated 11 August 2004, Les Cormack, Manager Casework, Foster Support, advised the Applicant that a decision had been made to revoke her authorisation as a foster carer for the following reasons:

"Substantiation of allegations of physical risk to a child in your care;

Substantiated allegations that the basic psychological need of children in your care are at risk;

Subsequent re-assessment conducted by the Foster Support Team.

Particulars of these grounds are:

[PI-eldest boy] stated that on 5.4.04 you slapped him on the face.

[PK-eldest girl] disclosed physical abuse of PI by you. She also alleged psychological abuse of her brother, PJ, by you.

Child protection staff at Mt Druitt CSC assessed that there was a likelihood of harm continuing if the children remained in the placement.

You deny that any abuse has occurred or that there is any risk of abuse occurring.

During the re-assessment interview with the Foster Support Team, you were unwilling to exchange information which could lead to a realistic appraisal of your future role as a foster carer. You expressed a deep mistrust of Departmental officers, including the foster support team.

The analysis of your file and interview with you displays a pattern of being unable to maintain working relationships with agency staff and to all placements being terminated abruptly.

There can be no reasonable guarantee that you and the Department will be able to work together again in partnership for the protection of children."

48 That decision was based on a report of caseworker, Calvin Brown, dated 10 August 2004. Mr Brown recommended that the Applicant’s authorisation be terminated and concluded:

"The placement of [IQ and the Family P children] with [the Applicant] should not have been made.

[The Applicant] appears to have an unrealistic, positive perception of both her ability to cope and her ability as a carer. [The Applicant] seems unable to adequately cope with children displaying difficult behaviours. She displays a poor understanding of the needs of individual children. The number of abuse allegations over three placements seems unusually high. It would appear that [the Applicant] has a history of difficulty conforming or following direction or co-operating effectively. The repeated allegations of deceit against the Department suggest a persistent suspiciousness. These factors seriously question her ability to deal in a professional manner and to accept the direction and suggestions of both DoCS and other agencies. These behaviours appear enduring and may place a child at risk."

Dr Blunt’s assessment

49 A report prepared by Dr Blunt, dated 22 November 2004, was tendered by the Respondent and in addition Dr Blunt gave oral evidence. In that report, Dr Blunt was asked to provide an opinion on the Applicant’s suitability to be an authorised carer and what conditions, if any, should be imposed if a decision was made to reinstate the revoked authorisation.

50 In her assessment, Dr Blunt relied on documents provided to her by the Department and her original report (September 2003). Dr Blunt did not interview the Applicant or the Family P children.

51 Creativity and Intensity in wanting to help IQ. Dr Blunt observed that the Applicant "impressed as being creative by nature and creative in terms of finding ways to try and help [IQ]". Dr Blunt considered that she had tried hard to make IQ’s first few weekends with her "very special" and gave as examples, IQ’s handwritten diary and the party organised for neighbourhood children where IQ cooked and devised the menu. Dr Blunt was concerned however that that level of intensity was "unrealistic and ... difficult to sustain over time." In her opinion, the Applicant had not been able to sustain this level of excitement and creativity in IQ’s case and this might have accounted for the school’s report that his presentation began to deteriorate as the placement progressed.

52 Dr Blunt went on to say that the Applicant had struck her as being "very intense in terms of her desire to want to help IQ and to advocate for his needs". Dr Blunt considered this to be unusual give that the placement had only been for three months. Dr Blunt noted that at her initial assessment, the Applicant had said she had asked specifically for "a difficult child, as she was wanting to put the effort into a child that everyone else said was too hard". Dr Blunt concluded that the Applicant had "significant needs of her own" to prove that she was going to be a great foster carer and that the evidence of this would be in the behavioural change of the difficult child that she fostered. This approach according to Dr Blunt was "destined to failure".

53 In Dr Blunt’s opinion, the Applicant presented as "a creative woman with a lot to offer children in general [but] there is a poor "fit" between her abilities and the needs of foster children in particular." She stated that:

"...one of the crucial aspects of being a foster carer is their need to be able to work within the constraints of a poorly functioning and poorly funded bureaucracy. They have to work with and respect the limitations of the caseworkers who are often worn out and overwhelmed by the magnitude of the numbers of families that need to be helped and the intensity of working with abusive families and abused children."

54 Dr Blunt said that she was concerned that the Applicant was "often locked in conflict with DoCS" and concluded "this must take away from the quality of care that she can provide at an emotional level to the children in her care." She noted that the Applicant had had difficulties dealing with the agencies handling each of her placements. She noted that the Applicant had a history of being demanding and challenging and of sometimes acting inappropriately, citing as an example, the Applicant’s support of the mother of the Family P children during a recent court case.

55 Dr Blunt predicted that if the Applicant remained the carer of the Family P children she would skirmish with DoCS on a continual basis and present constant difficulties to the Department which "does not cater for foster parents who are demanding." Dr Blunt saw this "adversarial demanding attitude" as part of the Applicant’s "personality make-up. Because of this, she concluded there was a "poor fit" between the Applicant’s personality and the demands of the role of foster carer.

56 Dr Blunt concluded:

"These issues do not make her a ‘bad person’, however they make it difficult for DoCS to work with her, as she can be confronting and challenging when she believes she is right... While one could argue that [to withdraw her authority to act as foster carer] may not be fair to [the applicant] in terms of employment, my main concern is that having foster parents and DoCS in conflict is not fair to the children in her care, who have already come from a disadvantaged background."

57 Dr Blunt concluded that the Applicant was therefore unsuitable to be a foster carer.

Applicant’s case

58 Family P children The Applicant contends that the damning findings set out in the Rojas report cannot be reconciled with the positive feedback she was given by Ms Rojas at a meeting only four days before the Family P children were removed. It is not in issue that at that meeting Ms Rojas had said the Applicant had been doing "a brilliant job". Ms Rojas gave evidence that while at the time she had some unvoiced concerns, she also recognised the "positives in the placement".

59 The Applicant has consistently maintained throughout these proceedings and at interview with DoCS that she has never hit a child or otherwise physically abused them. She specifically denies hitting PI or IQ (except in relation to the car incident, to which we shall return).

60 On the Applicant’s account, the children seemed happy and settled when they were with her. They told her they loved their rooms and were delighted that she had managed to get "new things" for them. She said she had gone to great lengths to ensure that they felt at home and were surrounded by their own toys and photos of their mother. She said that local shopkeepers and neighbours regularly commented on how happy and healthy the children appeared to be.

61 That is corroborated by the Applicant’s friend. The friend is a trained childcare worker and mother of two and she gave evidence in these proceedings. The friend said the Applicant spent about a day a week together with their respective children and spoke on the phone every other day.

62 According to the friend the children, and PK (the eldest girl) in particular, appeared to adore the Applicant and seemed very happy and secure. She said while the boys could be a "handful", the Applicant had managed to deal with them in an intelligent and patient manner. The friend said the kids routinely enthused about the delicious meals that the Applicant provided.

63 The friend said that, while it was apparent to her that the Applicant had been under considerable stress on account of financial problems [DOCS had apparently not paid an allowance to the Applicant for the first four weeks the children were in her care] and PI’s violent behaviour, she managed to hide this from the children. The friend considered that the baby had thrived and had become very attached to the Applicant.

64 Difficulties with PI On the Applicant’s account, PI had been a "difficult but delightful child". In her view, he, more so than his siblings, deeply missed his mother and this was the reason he had run away on a number of occasions. She said that while he had lived with her he had demonstrated some disturbing behaviours, such as smashing his brother’s head against the floor and on occasion she had to drag PI off his brother. She said she had repeatedly sought assistance from DoCS without success.

65 The Applicant claimed her request for counselling for PI had been refused. She claimed that Ms Rojas was unable to provide any assistance with PI’s difficult behaviour and had said "I can only tell you what you can’t do". She said that the contract she initiated to manage PI’s behaviour had been successful to a degree. Despite these difficulties, the Applicant claimed, she had managed to win over PI’s confidence and while initially he had been reluctant to relinquish responsibility for his baby sister, as the placement he had been persuaded to do so.

66 The Applicant agreed that the behaviour of the two boys had deteriorated to a degree while they were staying with her. She thought this might have been because they had begun to feel more secure and "at home" and knew they would not be thrown out.

67 Slapping Incidents The Applicant has consistently and emphatically denied slapping PI. She said that on the day the children were removed (the day of the second slapping incident) PI had slapped his younger brother. She also denied saying to PI "I want to get my life back".

68 "Invisible PJ" The Applicant denies calling PJ "invisible". On her account, she had suggested to PK that when he teased her to "Just ignore him... if you just pretend he is invisible he will go away". She said this was not done with malice and PJ had not appeared to be upset.

69 Yelling allegation The Applicant denied yelling at the Family P children in an abusive fashion. She said it was possible that the children may have mistaken her calling out from the kitchen to come in for dinner or the like as "yelling’. She said the children told her that when she lived with the mother the house had been very quiet.

70 Lack of support The Applicant claimed that the Department had failed to adequately support the placement of the Family P children. She pointed out that she received no money for over a month when the children first arrived and was reliant on the financial help of friends and local shop keepers. She said that she asked for weekend respite around her birthday and had been told that told "in your dreams".

71 Placement of IQ The Applicant claimed that, while IQ had been a difficult child, he was happy with her and she would readily have him back.

72 She said that things started to deteriorate after DoCS made IQ go on a camp against her strong recommendation and his wishes. She said she had advised DoCs that IQ would be unable to cope with a group of complete strangers and as events turned out this had sadly proved to be correct. On the second day of the camp IQ was sent home after the organisers concluded he could not cope in that environment. Dr Blunt noted in her report that the principal of IQ’s school was "horrified" when told that IQ had been sent to a camp.

73 Helpline incident On the Applicant’s account, this incident had been misconstrued. She claimed that at IQ’s insistence she had tried to get someone from DoCS to explain what had gone wrong with the aborted camp. She said that in desperation, having repeatedly tried to speak to someone through the usual channels, she had rung the Helpline and said "What do I have to do to get DoCS to answer my call. Do I have to threaten to kill him [IQ]?"

74 Slapping Incident The Applicant denied physically abusing IQ although she conceded hitting him across the legs on one occasion while she was driving to stop him grabbing the steering wheel. That explanation apparently has been accepted by DoCS and was accepted by the Tribunal (differently constituted) in the context of an earlier review of the decision to remove IQ.

75 Working with agencies The Applicant denied that when IQ was in her care she had attempted to play one agency off against the other (these allegations are broadly described in Dr Blunt’s second report). On her account, she had volunteered her views but at all times followed the care plan developed for IQ even where she believed that it was not in IQ’s best interests. She contends that some of the concerns voiced by agencies and referred to in Dr Blunt’s report had been exaggerated or misconstrued. Dr Blunt conceded in evidence that she was entirely dependent on the DoCS’ file and did not have the benefit of first-hand reports from any of the agencies.

76 Placement of NQ The Applicant challenged the claim set out in the Brown report that NQ had thought she was "mean". She said it was noteworthy that this statement was made after NQ’s removal from her care. On her account, NQ had been happy in her care. She said that she NQ was desperate to have a "forever family" and that the NQ was very disappointed when she found it could not be her.

77 She denied exposing NQ to violent behaviour in a pub. She said the pub incident had involved a gathering of family friends and friends of a bike group attended by adults and children alike. She said NQ had enjoyed herself.

Findings and Conclusions

78 It is almost trite to observe that cases such as this present very difficult evidentiary issues and that applicants in such matters have heavy evidentiary burdens to discharge, even on the balance of probabilities. This is because the principles to be applied require decision-makers – the Director-General in this case – to give "paramount consideration" to the safety, welfare and well-being of children in the care of foster parents. As a simple matter of policy, the Director-General, and this Tribunal when reviewing the Director-General’s decisions, are required, where there is a conflict, to place the interests of children involved in such proceedings above those of any carer or foster parent.

79 Most of the evidence we have considered suggests that the Applicant is a decent, energetic woman, not inclined to abuse or hurt children. When interviewed for placements she impressed those who assessed her. Dr Blunt came to a view that she was committed and capable and a strong advocate for the children placed in her care. Nevertheless, each placement with her has failed.

80 In the first case, it appears that Barnados took a conservative view. It is not altogether clear why NQ was removed given that on the Applicant’s account she had offered to provide a "forever placement". The answer may be as innocent as Barnados forming the view that a "better fit" was available elsewhere. It is apparent that the pub incident was not the trigger as NQ remained with the Applicant for sometime after that incident had been investigated.

81 In relation to the second placement, there is no doubt that IQ is a troubled child from a very difficult background. He had been placed with several other carers before coming to the Applicant. He had been exposed to appalling abuse. That placement broke down because DoCS considered that her stress levels were too high and that she was involved in an unresolvable conflict with the agencies involved in IQ’s case plan and her complaints about the level of support she was receiving. Dr Blunt’s view was that he needed a more "highly structured environment" than the Applicant was able to provide. It is noteworthy that Dr Blunt considered that, given IQ’s needs, no single family could be expected to care for him.

82 Various misdeeds have been alleged against the Applicant by the children who are the real subject of this application. The chief of these is that she twice slapped the eldest boy, PI, on the face. She has consistently denied this. He seems to have been somewhat inconsistent in his accounts, alleging in one version only one slap and in another, two. Whether he was slapped as he claims, only he and the Applicant can really say. The boy’s claims were supported by his sister who alleged that she had seen the Applicant hitting, choking and punching her brother. He, however, has not made such complaints. The children’s evidence must therefore be treated with some circumspection.

83 It is also alleged that the Applicant psychologically abused one of the children by calling him "invisible". The Applicant places the remark in an entirely innocent context. She also denied yelling at the children. It is impossible to determine where the truth lies. We think that it is common knowledge that even the most loving and caring of parents occasionally raise their voices at their children, if for no other reason than to warn them of danger or to stop a squabble. The occasional raising of the voice by a parent is one thing; constant snarling and angry screaming entirely another. It may well be that the Applicant did raise her voice on occasion. If it was only an occasional matter it would hardly constitute a good reason to break the placement. The evidence on all of this, however, is very unclear.

84 The Applicant is said to have been described by one of the children as "mean". We were not provided with an explanation of this. Such an opinion could flow from terrible physical abuse or from the simple imposition of disciplinary boundaries around children who have not been socialised by their own parents. It is impossible to tell without further evidence. No finding against the Applicant can be made on this basis – it is virtually meaningless.

85 The "Helpline incident" is also impossible to disentangle from its evidentiary thicket. On the one hand, the call could have been interpreted as the Applicant reaching the end of her tether and being on the point of committing physical violence to IQ. On the other hand, however, it could have been the Applicant’s frustrated way of seeking to attract an urgent response to a real problem with which she needed help - assistance that she felt she had a right to expect but was not being supplied. We do not think that any conclusion can be drawn against the Applicant on this basis.

86 We have some concerns about the Department’s conduct in this case. One of the grounds upon which the children are said to be at risk if they are returned is strikingly specious and, indeed, we think unfair to the Applicant. She was criticised by DoCS for, in effect, denying the claims by the children. She would not acknowledge that the children were at risk with her and disagreed with the reasons for their removal. She was damned if she admitted the allegations and damned if she did not. This was a bureaucratic Catch-22. Moreover, DoCS seems to have concluded that the children are telling the truth and the Applicant is not, despite the evidentiary problems. DoCS do not seem to have considered the possibility that she may be telling the truth or that the children may be embellishing and exaggerating minor incidents for some reason.

87 Further, despite the fact that, on its own assessment, the Applicant was only supposed to receive a maximum of three children, DoCS chose to place four with her. While the experiment was not, perhaps, an inevitable failure, the burden placed on the Applicant was extraordinarily heavy and DoCS must take the lion’s share of responsibility for that breakdown. It was asking too much of the Applicant and the Department ought reasonably to have known that.

88 Having said all that, the placement failed. Whether it failed because the Applicant was not up to the job, that she and the job formed a "poor fit", because she was overloaded or because DoCS provided her with insufficient support, or a combination of two or more of these factors, its failure is evident from the fact that, once the children were removed, they did not wish to return.

89 The Applicant was also criticised by DoCS and some of the agencies involved with the care of IQ for her lack of co-operation. She took the view that her opinions and requests were being ignored or were being given low priority. Dr Blunt commented on the unusual strength of her advocacy on behalf of the children.

90 There is a fine balance to be struck between legitimate advocacy on behalf of children and counter-productive, unrelenting demands. Certainly, it appears that DoCS in two of the placements and Barnardos in another, found the Applicant to fall on the relentless end of the spectrum. Foster carers do not have to be obsequious to carry out their responsibilities but we accept Dr Blunt’s view that co-operativeness and a willingness to compromise are essential elements of a viable relationship between agencies and carers.

91 We are troubled by the fact that, despite her obvious strengths and goodwill, each of the placements with the Applicant has broken down. We are concerned that children in her care have described her as "mean" although the content of such opinions is difficult to gauge from such comments alone. As we have remarked, they cover a wide range. Where evidence suggests that children may be at risk, there is no question that the appropriate decision by the Director-General is to remove them from that risk at least until it can be properly assessed.

92 In our view, the return of the Family P children to the Applicant cannot be countenanced. All except of course the toddler, have stated they do not wish to return. As noted there are aspects of the children’s respective accounts of their treatment by the Applicant that are troubling, nevertheless there is no evidence to contradict their view that they do not wish to return. In any event the children have now been away from the Applicant for close to 12 months after only a relatively short period with her. Accordingly, we affirm the decision to remove the children.

93 The application to review the revocation of the Applicant’s carer authorisation presents a more complex picture. It is well known to this Tribunal that there is not a bottomless pit of people capable and willing to take on the role of foster carers. We are, therefore, concerned that if the decision is made to remove the Applicant’s authority to care for children is revoked, a potentially good foster carer may be lost from the pool. On the other hand, no matter how great the need for carers, it would be intolerable to authorise a carer who was actually or potentially likely to abuse children or who would fail in his or her responsibilities to the children.

94 We were impressed by the Applicant in many respects. Dr Blunt’s assessment of her is in many respects positive and we concur with her opinions in that regard. We think, however, that the Applicant may be capable of changing her approach with further training. Dr Blunt remarked on her intensity and her obvious desire to prove herself to be an excellent carer. This ambition may, paradoxically, have been her downfall. On the other hand, her keenness suggests an ability to learn from past mistakes.

95 In particular, we would emphasise the importance of co-operation with agencies and caseworkers that she deals with and constructive ways of expressing any concerns about case plans that she may have. Although able to demonstrate some examples of working in a co-operative way we believe that her ability to do so needs to be, and could be, enhanced by further training. It would be unfair to her and also short-sighted on the part of the Department to refuse to consider any future application from the Applicant for a foster authority.

96 While some of the Applicant’s shortcomings may be addressed by training at this stage we believe that the decision to revoke the Applicant’s foster authority is the correct decision. While mindful of her many positives attributes and the challenging placements with which she has had to cope, the fact remains that two placements in the recent past have broken down and none of the removed children have expressed a wish to return to the Applicant. We could not be reasonably satisfied at this stage that any future placement would not follow the same course. It is self evident that it is not in the best interests of a child to be placed with a foster carer where there is a real and material risk that the placement would break down, for whatever reason. We therefore affirm the Director-General’s decision to revoke the authority but recommend that, if the Applicant is willing, that she be offered further training as a potential foster carer and that she be reassessed at a suitable date in, say, 12 months time.

Orders

The decision to remove the children the subject of this application is affirmed.

The decision to revoke the Applicant’s carer authorisation is affirmed. It is recommended that the Applicant be offered further training as a potential foster carer and that she be reassessed at a suitable date in, say, 12 months time.