The decision to remove the child from the applicants' care
- It was the evidence of Ms Molony that the decision, of 30 May 2014, to remove the child from the applicants' care was made so as to 'minimise any risk of further emotional harm' the child may be exposed to by Mrs B's mental health/emotional state.
- Mrs B has suffered from depression for over 20 years and this was well known to the respondent at the time she and her husband were assessed as being suitable permanent carers for the child. Although there were some incidents concerning Mrs B's mental health from the time the child was placed into the applicants' care, Ms Molony said that the incident giving rise to the decision to suddenly remove the child from the applicants' care was a telephone conversation Mr Adam Beck of the office of the respondent, in Port Macquarie, had with Mrs B, at her home, many miles away, seven days earlier on Friday 23 May 2014.
- The evidence is that on this day (23 May 2014), Mr Beck was advised by the child's pre-school that they had raised with Mrs B concerns they had about the child's escalating aggressive behaviour towards other children at the pre-school. Mr Beck was advised that Mrs B responded by saying that she would not be returning the child to the pre-school. Mr Beck then telephoned Mrs B to 'ascertain her current emotional state'. He recorded Mrs B as 'sounding teary and presenting with a flat affect' and when he suggested that Mrs B allow the respondent to place the child in respite for the weekend she became upset and asked that he not be taken from her.
- One week later, without any further concerns having been raised about Mrs B's mental health and the child having continued to attend pre-school, the respondent suddenly decided to remove the child from the applicants' care.
- This was clearly very traumatic for the child and the applicants who Ms Molony readily acknowledged loved the child very much and to whom the child had formed a strong attachment. They were in a sense his most stable attachment since he was born.
- While we accept that there were issues in regard to Mrs B's mental health, there is no direct evidence of the child being subject to emotional harm, or 'further emotional harm' because of Mrs B's mental health.
- What is evident from the material before us is that the respondent's officers in Port Macquarie were finding it difficult to manage the placement, a new placement, from such a long distance away. This is also evident from the documents produced, pursuant to a summons, by the Upper Murray Family Care Kinship Support Program.
- As we have noted the Port Macquarie office of the respondent did seek to transfer the management of the placement to the Albury office of the respondent. The Albury office, we were informed, refused to accept the transfer of the management of the placement and hence the Port Macquarie Office had no alternative but to continue to manage the placement from such a long distance away. These are internal management issues for the respondent to address and not ones for the Tribunal to deal with in this application. Nevertheless, if Ms Molony is correct in her evidence, a refusal to accept a transfer of a placement of this kind may be inconsistent with the principles set out in section 9 of the Care Act.
- In light of difficulties encountered with the placement, sometime in late March 2014, the respondent officers in Port Macquarie decided to transition the child to a new permanent placement within the Albury region. A new permanent placement was found with an authorised carer, authorised through Challenge Services, a designated agency under the Care Act. That placement had been identified by 30 May 2014 and the child has remained in that placement since that day. And while the respondent officers in Port Macquarie retain overall management of the placement of the child, the day to day management of the placement is by Challenge Services, which is located within the Albury region. Accordingly, many of the difficulties experienced by the respondent and the applicants in the management of the placement of the child with the applicants are no longer of any concern. We note that the issues raised by Mrs B in regard to the number of days the respondent required the child to attend pre-school and his increasing aggressive behaviour have been addressed in that he attends fewer days and his behaviour has improved.
- It was the evidence of Ms Molony that while it had been decided to move the child to another permanent placement, it had also been decided that a gradual transition from the applicants to the new placement was not a possibility given Mrs B's mental health.
- Again, based on the material before us, we have some difficulty with this decision, but are not critical of Ms Molony. As this decision is not a decision the subject of review in this application we have considered it no further, other than to note it was made.
- As we have explained the role of the Tribunal is to determine the correct and preferable decision as of today's date. That is, the Tribunal must also take into account the events that have occurred since the child's removal from the applicants' care, including evidence in relation to his current placement. In this regard Ms Weule, the appointed Guardian ad Litem for the child has recommended that the child's best interests are that he remains in the day-to-day care of his current carers. She has made this recommendation on the basis of the material before the Tribunal and having met with the applicants, the current carers and the child. In her report Ms Weule said the child appears to have bonded closely with the current carers and that another move would be difficult for him. In recommending that the child remain with his current carers, Ms Weule also recommended that contact between the child and the applicants be implemented. In her submissions to the Tribunal on 7 February, Ms Weule said that this should be unsupervised and for weekends and holidays.
- As we have already indicated we agree with these recommendations of Ms Weule.
- However, as the respondent has relied on a number of other factors as the basis of its decision being the correct and preferable decision, we will also deal with these briefly.
- The first matter is an alleged failure of Mr and Mrs B to engage with Services. The evidence is that in August 2013, not long after they took responsibility for the day-to-day care of the child, the applicants self-referred to the Upper Murray Family Care Kinship Support Program seeking assistance with parenting the child. They did so as they had not been parents of a young child for many years. After a more formal arrangement was reached between the respondent and the Upper Murray Family Care Kinship Support Program, on 9 October 2013, Ms Melanie Kilo (Ms Kilo) of the Program made her first visit to the applicants' home.
- Some assistance was also received from a maternal child health nurse. That nurse continued to visit the applicants' home up until the child was removed on 30 May 2014.
- In February 2014, it was Ms Kilo who indicated to the respondent that she was struggling to engage with the applicants. She is recorded as saying she felt the applicants were not responding to her recommendations on strategies to deal with the child's behaviour (i.e. discipline strategies). It was on this basis the respondent sought a Carer Placement Review by the Victorian Department of Human Services.
- There is no dispute that Mrs B and Mr B both sought assistance in performing their role as authorised carers for their grandson. Mrs B, in her evidence said she listened to what was recommended, but she found it did not work. In our view, in the absence of any direct evidence from the maternal child health nurse, or Ms Kilo it cannot be said that Mrs B or Mr B failed to engage in these services. They appear to have initiated them and tried to adopt their recommendations, but they did not withdraw from those services.
- We also note that Mrs B had willingly participated in and completed the Triple P Group Parenting Program which had been arranged by the respondent. She commenced that program in mid February 2014 and completed it one month later. It was the evidence of Mrs B that she had wanted to attend an earlier session of the program, however it was not available.
- The other concern of the respondent was Mrs B's reluctance to send the child to pre-school for three days a week. Mrs B's reluctance was not because she had concerns about the pre-school - her concerns related to the child's ability to cope with three days. This concern appears to have been a valid one as the current carers have reduced the days to two days on the basis of three days being too much for the child.
- The other matter of concern for the respondent was Mrs B's failure to engage with mental health professionals. While we appreciate the respondent's concerns about Mrs B's ongoing mental health, we find that these concerns were probably exacerbated due to the distance between the officers of the respondent managing the placement and where Mrs B and the child were located. Again we are not critical of the individual officers of the respondent at Port Macquarie.
- The next matter is Mrs B's alleged deteriorating mental health. The respondent points to a number of incidents which it asserts evidence's Mrs B's deteriorating mental health. The first incident occurred on 27 August 2013, when Mrs B was referred, by her counsellor, to the local mental health service on the basis she had disclosed suicidal ideation and self-harm to the counsellor. In her evidence, Mrs B denied she had made such disclosures, but did explain that she had disclosed that she had 'loud discussions' with Mr B that resulted in her grabbing a knife and stabbing it into the kitchen bench. Her evidence was supported by the clinical presentation record of her referral. That record also noted that Mrs B had significant childhood adversity and that her current family responsibilities became overwhelming at times. The note went on to say Mrs B expressed insight into her behaviours and the impacts on her expressions of anger/frustration may have on others.
- In her oral evidence Mrs B said she often became overwhelmed when her youngest daughter also came to their home for contact with the child. This she said often caused considerable friction within the family and an escalation of behaviour problems with the child. Mrs B said she found this difficult to deal with. Mr B said he loved his youngest daughter but did not agree with what she was and had been doing.
- The next incident occurred on 24 October 2013 when Mrs B presented at the local hospital stating that she was having trouble coping with the child's behaviour. We note that this incident occurred after the child's mother had contact with the child at the applicants' home. Mrs B said the visit had resulted in an escalation of the child's behaviour, which she could not cope with. We also note that at this time Ms Kilo had only made two visits to the applicants' home. The most recent of those visits being ten days prior to the events of that day.
- The next recorded incidents are those where the respondent recorded the applicant as appearing down in mood during a telephone conversation. These records are dated 20 December 2013 and 23 May 2014. We have already dealt with the latter record and the earlier record is in similar terms.
- At the request of the respondent, the applicant obtained a medical report in regard to her depression. The report is dated 2 April 2014. In the report, Mrs B's treating doctor noted that Mrs B had been receiving treatment for depression since 2002 and that she had been stable for some time on her current medication. The doctor said Mrs B had never been referred to a psychiatrist, but her medication was reviewed on a regular basis, at least every couple of months. The doctor said Mrs B was very compliant on medication and has been seen by counsellors from time to time. The doctor said Mrs B was coping with her depression well and he expected Mr and Mrs B would be able to care for the child appropriately notwithstanding Mrs B's depression and Mr B's chronic back pain.
- The respondent submits that the doctor's report is of limited assistance as he makes no mention of Mrs B's recorded suicidal ideation in August and October 2013. In our view, this does not mean that the doctor was not made aware of these matters. In our view, Mr and Mrs B are not people who minimise Mrs B's mental health issues. On the contrary they are very open about it and to some extent their openness is against their own interests. The evidence is that Mrs B is fully aware of her illness and she appears to seek help when she realises she is not coping. This, in our view, is also reflected in the doctor's report.
- Attached to the applicants' supplementary joint statement is a letter from the North East & Border Mental Health Service dated 23 December 2014. The letter states that Mrs B was referred to that service, by her counsellor, on 28 November 2014. The letter states that Ms B's distress at the time of referral was 'congruent with her situation' and no suggested change to her prescribed treatment was made. It was suggested that she continue with her counselling, but in the 'absence of clinical symptoms …., ongoing involvement with specialist mental health services was not indicated,'
- On the basis of Mrs B's evidence and the material before us, Mrs B appears to be continuing to cope with her depressive illness by taking her medication.
- In regard to Mr and Mrs B's inability to consider and change behaviour in relation to their parenting style and understanding of the child's needs, the respondent's concerns relate to Mr and Mrs B's disciplinary style, which is described as giving the child a smack on the nappy and yelling at the child.
- There is no direct evidence of anyone having seen Mr or Mrs B smack and yell at the child. The only evidence of this occurring is that of Mr and Mrs B during their conversations with Ms Kilo after they had found her strategies for disciplining the child were not working.
- As we have already noted, physical discipline of a child in care is not permitted under clause 42 of the Regulation and the Code of Conduct.
- There was an issue as to whether the applicants received a copy of the Code of Conduct. Ms Molony said she had sent it, but the applicants said they did not receive it. In our view, nothing turns on this as the applicants readily acknowledged that physical discipline was not acceptable and they wanted to understand what was acceptable. What they were told by Ms Kilo has not been put into evidence, nor has the respondent produced a document (i.e. a policy or procedure) for managing behaviour of the kind the applicants were experiencing. The applicants' evidence was that what they were told by Ms Kilo did not work and in the absence of it working they could not see how a little smack on the child's bottom, while clothed, was unacceptable.
- In our view, on the material before us, it cannot be said that the applicants were unwilling to change their parenting style. Nor is there any evidence that their parenting style was such that the child was traumatised, or at risk of significant harm.
- The final matter raised by the respondent was the placement review conducted by Ms Fanner of the Victorian Department of Human Services. Ms Fanner based her report on interviews she conducted with the applicants on 25 February and 4 March 2014. She states that each interview lasted two and a half hours. We note Ms Fanner did not conduct the interviews at a time the child was also present. That is, she did not have an opportunity to observe the child's relationship with the applicants and vice versa.
- In her report, Ms Fanner said she was instructed to seek the applicants' views as to how the child had settled in, their parenting styles and what they had learnt, their methods of disciplining and what strategies they had in place to look after their own well-being.
- Mr and Mrs B, as we have found them, were clearly very open and honest about their experience, their parenting styles and the support, or lack of support they had during their interviews with Ms Fanner.
- In her report, Ms Fanner concluded that the placement of the child with the applicants required significant intervention and support to ensure the child was provided with an environment whereby he could meet his full development potential and is free from risk of future emotional and physical abuse by his carers. As we have noted, there is no evidence of the child having been subjected to emotional or physical abuse by the applicants while he was in their care.
- Ms Fanner's qualification, experience and expertise have not been explained. Nor was she called to give oral evidence.
- Nevertheless, we note the intervention supports recommended by Ms Fanner. These, as described below, primarily relate to Mrs B and her health and Mr and Mrs B's relationship:
- Full mental health assessment of Mrs B including a mental health plan with regular reviews and ongoing support and review for off her medication.
- Ongoing counselling and intervention for Mrs B in relation to past abuse and grief and loss issues.
- A full parenting assessment of Mrs B.
- Relationship counselling for the applicants.
- Regular respite for the child in a positive environment.
- Ms Fanner also suggested consideration might be given to an alternative placement of the child given the applicants' responses during interview.
- In her evidence, Ms Molony said that, in light of Ms Fanner's report, the respondent had determined it was in the child's long term best interest to remove the child from the applicants' care, rather than invest in the matters recommended by Ms Fanner.
- In conclusion of the maters raised by the respondent - we accept the evidence is that Mrs B was not coping with the child's behaviour. On the material before us, we accept this lack of coping may be attributable, in part, to Mrs B's longstanding depressive illness. However, we do not accept that the evidence establishes that Mrs B's mental health was deteriorating. Nor do we accept that the applicants failed to engage with services of the respondent, or that they were unable to consider or change their behaviour in relation to their parenting style and understanding the child's needs. We agree with the respondent that more needed to be done to address these issues.
- However, it is now almost 11 months since the child was removed from the applicants' care and as we have indicated, in our view, the evidence of Ms Weule, the Guardian ad Litem, is very persuasive. It was the evidence of Ms Weule that given the lapse of time since the child was removed from the applicants' care and his current attachment to his new carers, the child's best interests lay in him remaining in his current placement. That placement we note is a positive placement and one where the existing carers have openly sought regular contact between the child and the applicants. At the same time we find that the applicants are loving grandparents who do not present a risk to the safety of the child and should be given every opportunity to be grandparents to the child to the best of their ability. This will serve both the interests of the child, the applicants as grandparents and also the current carers. However, for this relationship to work the management of the placement should be transferred, as a matter of urgency, and there should be an immediate exchange of information between the applicants and the existing carers. We note that this has been proposed and that a contact schedule has been put forward to the applicants by Challenge Services, the current agency managing the placement of the child.
- The proposed schedule appears to be very regimented and in our view a possible source of future conflict. While we understand the applicants' reluctance to see the child being placed into the day-to-day care of persons who are not family members, this does not mean that they cannot have a very active and important role in the child's life as grandparents. This is the role they would have had if the child was in the care of his parents, and we encourage them to see their relationship with the child in that context. Once they get to know each other, contact may be able to be initiated between them and the new carers in a less formal way that also enhances the child's best interests.