CXQ v Children's Guardian

NCAT Administrative and Equal Opportunity|2017-12-14

Background and details of the Risk of Harm reports and other allegations

In April 2012, CXQ was approved as a foster carer by Family and Community Services (FACS) to provide long term care for her two nephews aged 5 and 6 and her niece aged 2. Once approved, the children immediately came into her care. It was agreed by all parties the children were most likely exposed to family violence and drug abuse whilst living with their birth parents and before coming into the care of CXQ. This meant the children had complex and high needs.
In November 2013, the supervising agency (referred to hereinafter as 'the agency') took over supervision of the placement from FACS. In May, June and September 2014 the agency held placement meetings with CXQ. The agency was concerned for the safety of the children as there had been several child protection reports relating to physical and emotional abuse. The reports from the agency visits described CXQ's home as chaotic and caseworkers were concerned when CXQ expressed feelings of being overwhelmed in trying to manage the children's difficult behaviour.
In September 2014, CXQ advised the agency that she was not coping with the behaviour of the children and requested that she have a break until the end of the year so that she could focus on herself and the needs of her niece. At a family meeting, it was decided that the two nephews be placed with a family aunt and the niece remain living with CXQ. It was also agreed that the agency arrange for an independent assessor to undertake a placement assessment and review.
The consultant, Ms Sarah Armstrong, undertook the interviews and assessment in February 2015. She concluded that CXQ had "failed to protect the [niece] from emotional, physical and sexual harm" and further that "she lacked insight into the impact of this failure and is unrealistic about her ability to meet [the niece]'s needs into the future". She recommended that it was not in [the niece]'s best interest to return to live with CXQ. She also recommended that the two nephews not be returned to the care of CXQ.

Details of the Risk of Harm Reports (ROH) between October 2012 and February 2014

There were nine risk of harm (ROH) reports made to the FACS Helpline regarding the three children in the care of CXQ: 1. On 26 October 2012, a ROH report stated that CXQ had hit the children and this had been witnessed by their birth mother. It was also alleged that CXQ's partner was using alcohol and cannabis and that CXQ was drinking from 4.00pm during the day. 2. On 3 December 2012, a ROH report raised concerns about the children's behaviour at respite care. The niece was biting. The nephew disclosed that CXQ had slapped his sister and put her in her cot. The niece was reported to have woken from a nap in fright and cowered. 3. On 25 March 2013, a ROH report stated that the two nephews had disclosed CXQ had hit them on the hand with a stick and one disclosed he was "hit on the bum" with a stick. CXQ was reported to swear all the time including in front of the children who appeared to be scared of her. 4. On 29 September 2013, a risk of serious harm (ROSH) report noted that CXQ was physically abusive towards the children. She had been witnessed shaking the niece when the niece was in a high chair. The reporter heard the nephew ask CXQ why she had punched him. The reporter had seen CXQ throw things, which hit the children. Neighbours had attended the home to stop incidents. There was ongoing verbal abuse and the children were described as being fearful of CXQ. CXQ was reported as saying that she hated her life and appeared to resent caring for the children. 5. On 30 October 2013, a ROSH report stated that members of the extended family were perpetrators of sexual abuse. The niece, who was 4 years old, disclosed to CXQ that a boy had touched and put things in her vagina. The niece was described as having a recent increase in sexual behaviours, touching herself and attempting to touch her brother's genitals. She had a respite placement with an older boy and had been left with someone (unnamed) when CXQ was in hospital. 6. On 11 November 2013, a ROH report was made concerning the same information in the previous paragraph. CXQ had taken the niece to the doctor. The child disclosed that her brother had touched her genitals. A JIRT investigation did not substantiate the allegation of abuse or harm. 7. On 2 July 2014, an anonymous call was made to the Helpline and the caller stated the children had been verbally and physically abused. 8. On 17 September 2014, a ROSH report was received in relation to the niece having 2 marks and a graze on her head which the children disclosed were caused by CXQ throwing a spoon. The niece disclosed that CXQ had told her to say she had fallen over at school. The report described the children as hungry, dirty and in a distressed state. The nephew, aged 8 years, had disclosed he was bashed by CXQ. All the children stated that CXQ had told them she did not want them anymore. 9. On 2 October 2014, a ROSH report was received in relation to the niece (aged 4) displaying sexualised behaviour at the child care centre. It was reported the niece exhibited physical and behavioural indicators strongly suggesting she had been a victim of sexual abuse. She was observed on multiple occasions to request three boys to join her in a secluded space. She asked them to take off their pants and asked if she could touch their penises. She then took off her own child underwear and was attempting to straddle another child in an attempt to sit on his genital area. When she was asked what she was doing she replied, "Go away I'm telling secrets".

Further allegations arising from the carer assessment by Ms Sarah Armstrong

Ms Armstrong interviewed CXQ on 10 and 24 February 2015 as part of the placement review. Ms Armstrong reported a number of disclosures made by CXQ during the interviews that the agency also considered in making their decision to remove the children. These included: 1. she was stressed by the children's behaviour and begged for respite because she was exhausted; 2. she admitted to yelling at, and smacking the children as she did not have any other strategies; 3. she admitted there was domestic violence in the home between herself and her partner, Dave, before he left in 2013; 4. she admitted that her father, who had prior convictions for sexual assault, had visited her home and spent time with the children; 5. she stated that she and her boyfriend broke up because they couldn't have sex. She is quoted in the report saying, "…sometimes we would wait until [her niece] was asleep and we'd try to start something and then [her niece] would sit up and look and ask "what are you doing?" Sometimes male friends would sleep there in my room but would just sleep there - nothing else".

CXQ's response to the risk of harm reports and further allegations

CXQ addressed the allegations in her two affidavits and in her sworn evidence. She stated she is from a very large 'chaotic family' that have over the years been very dependent on her. She therefore felt obliged to help her family when her brother and his wife were unable to care for their three children.
CXQ had no children of her own but had experience with her 42 nieces and nephews as a very involved aunt. They would stay with her on weekends and in the holidays. However, after six months into the placement as a full-time carer, she realised that she did not have the skills or experience to care for the children and to meet their very complex needs.
The children displayed very challenging behaviour from the outset (April 2012). They were "high energy" children who required constant work and supervision. The oldest child was particularly difficult as he had been the primary carer of the two youngest children. He struggled in the transition from carer to just being a child and constantly challenged CXQ and her care.
CXQ also felt very let down by her extended family as they did not support her during this time. CXQ approached the supervising agency and the agency arranged for the children to see a child psychologist and paediatrician. However, she also felt disappointed by the agency and their failure to provide her appropriate support.
CXQ also told the Tribunal that despite her difficulties, there were many positive times and, for the most part, she believed the children had settled into a healthy routine whilst in her care. She also focused on the children's education and arranged for tutoring twice a week to help them with their homework. If they did not have homework, CXQ would ask them to read a book or write her a story on what they had just read.
In May 2014, CXQ's brother, who was the father of the children, passed away. In August 2014, CXQ's father passed away. This was a very difficult time for CXQ. She had to deal with her own grief as well as support her mother and siblings. She was not coping in caring for the children and approached the agency for some respite.
As stated, in December 2014, the agency arranged for a consultant, Ms Sarah Armstrong, to carry out an assessment of the placement. She interviewed CXQ. CXQ disagreed with many of the statements made in the consultant's report that were attributed to her and she also disagreed with the consultant's recommendations that she not be allowed to continue as the carer of her niece.
In relation to the risk of harm reports and the view that she is a risk to children, CXQ stated in evidence the following:

she acknowledged she was overwhelmed with the general care of the children. She agreed she did not have the knowledge, skills or experience to meet the children's needs. However, she stated that she has since completed parenting courses and now understands that her yelling and physical smacking can have negative impacts on children's development and well-being and it is not the correct approach to managing difficult behaviour.
She denied ever deliberately hitting the children. On one occasion, she did hit her niece with a tissue box but this was an accident. She specifically denied shaking her niece. She also denied exposing the children to domestic violence between herself and her partner. However, she admitted there was one occasion when she was having a verbal argument with her partner as he had not been supportive of her parenting priorities. She stated she "snapped" and slapped him across the face. While the argument occurred away from the children, she knew her response was wrong. The next day she ended the relationship and her partner moved out of the house.
She acknowledged her use of alcohol had been a problem in the past when she was experiencing difficulties in her life. Prior to the children being in her care she would drink every day. After the children came into her care she greatly reduced her alcohol intake to occasionally having a glass of wine in the evening. She did not agree that she exposed the children to alcohol and drug abuse. She is also continuing to receive treatment from her GP about her drinking.
She was aware that her father had a conviction for a child sex offence, however, while she did not believe he would commit such an offence, she was "never willing to test it". She denied allowing unsupervised contact between her father and the children. She stated that there was only one occasion when her father was in contact with the children without her being present. On that occasion her brother took the children from her house without her knowledge and drove them to her father's house. As soon as CXQ became aware of this, she drove to her father's house and collected the children. She estimated the children would have been at her father's house for no more than 10 to 20 minutes.
Her father did visit the children at her home on special occasions such as Father's Day, his birthday and Christmas day, however at no time was her father left alone with the children and at no time did he ever sleep over. She also telephoned the agency caseworker in advance to inform him about when her father was visiting on these special occasions.
She agreed in September 2014 she approached the agency for some respite as she was not coping. She stated in evidence, "I lost Dad and [her brother]. It got to the point where I just wasn't coping. I had lost my partner. My stepdaughter wasn't talking to me. Just lost my brother who I was extremely close to when we were younger, closer than all the others, and I lost my Dad, who I was… who I cared for because everyone else abandoned him and I didn't cope."

CXQ's response to the allegation that youngest child was exposed to sexual activity

In October 2014, CXQ was informed that her niece, who was 4½ years old, had exhibited sexualised behaviours while at the child care centre that she attended 3 to 4 days per week. She understands JIRT investigated the matter but took no action.
She denied any suggestion that she had exposed her niece to sexual activity during the placement. She denied Ms Armstrong's claim in her report that while her niece was sleeping in the same room, she and her partner would try to initiate sexual activity. She stated that her niece only ever saw her and her partner kissing.
She stated that she did not know the reasons for her niece's sexualised behaviour. She stated in her affidavit that she had never observed anything inappropriate between her niece and her niece's older brother, who was 3 years older. In the interview with Ms Armstrong she was asked about where this behaviour may have originated. The report stated her response as follows: [Name of niece] knows all about sex and about people sitting on each other when they have sex. I don't know where she gets it from - maybe it's from when she was still living with her parents - I only let her stay with my mum, [two names of family members] - nobody else except respite carers. I've talked to the kids about nobody looking at or touching their private parts. [Name of niece] will try to touch and grab their penis - men and boys - and will kind of hit them there - well, it's at her eye level, isn't it? A little boy lived near us and I think they were doing that sort of play ([name of boy] and he was 10) and he pulled [name of niece]'s pants down. I sent that boy home and banned him from coming over any more. When it was happening at the [name of child care] centre I told them about what happened with [name of boy]. I'm not sure if I told [name of agency] about it; no, I didn't report it to DOCs because I dealt with it. If she touches a male now I look into her face and tell her no. She doesn't do it with everyone.
CXQ stated in her affidavit, "I feel that I have acted very protectively towards the children in relation to this risk. I was sexually abused as a child and I am hypervigilant in relation to this issue".
The evidence is now considered under each of the subheadings of s15(4) and 30(1) of the Act.

Seriousness of any matters that caused the assessment in relation to the person

The Tribunal is satisfied on the balance of probabilities that the allegations against CXQ outlined in the ROH reports that she physically smacked and yelled at the children took place. This finding is based on her own admissions and her evidence that such conduct could have negative impacts on the children. The Tribunal regards this conduct as serious.
The ROH reports allege CXQ physically abused the children including violently shaking her niece while the niece was in a high chair, punching her nephew and exposing all the children to domestic violence between herself and her partner. These are very serious allegations, however they are all strongly denied by CXQ in her affidavit and in her sworn evidence to the Tribunal. As the allegations are untested and based on anonymous reports to FACS, the Tribunal does not make any positive findings regarding them. However, due to the number of allegations and the admission by CXQ that at times during the placement she was not coping and had engaged in physical smacking, some suspicion remains that some of the allegations may have occurred. In other words, the Tribunal retains a 'lingering doubt' in respect of the allegations.

The sexualised behaviours of the youngest child

The ROSH report dated 2 October 2014 referred to the niece (aged 4) displaying sexualised behaviour at child care. The agency was very concerned about the behaviours and referred the niece to a clinical child psychologist, Dr Piercy, for an assessment.
Dr Piercy assessed the niece in April 2015 when she was 4½ years old. Her report dated 9 April 2015 sets out a history of the niece's life to date and states "There were child protection concerns frequently raised with Community Services regarding the child and her brothers when in the care of their birth parents. These concerns included a long history of domestic violence, chronic neglect, physical and psychological abuse, lack of supervision, unhygienic living conditions, co-sleeping arrangements and unmanaged mental health and drug and alcohol abuse issues for [the child's] parents".
Dr Piercy described how the niece came into care and her report states "Because of these concerns [the child] and her brothers were removed from their parent's care on 15 September 2011 when [the child] was 11 months old. [The child] and her brothers were initially placed in an emergency arrangement with authorised carers where [the child] was reported to show signs of 'insecure attachment' and screamed at separation, bath time, bedtime and being put in a pram… [The child] and her brothers relocated on the 20 April 2012 to live with their Aunt [CXQ], following final orders giving parental responsibility to the Minister until [the child] was 18. [CXQ] resided with her partner, [name of partner], for another approximately 2½ years."
Dr Piercy set out in her report further details of the niece's sexualised behaviours and stated "[Name of manager] from the childcare centre reports additional concerns regarding [the child]'s inappropriate sexualised behaviour. These concerns were initially raised in July 2014 when a number of incidents occurred at the centre. These included [the child] pulling children's pants down, touching the genitals of other children, [the child] removing her underwear and insisting that another child touch her genitals. Some of these incidents occurred during "body and doctor play" with other children inside the centre and other incidents occurred when [the child] removed herself and other children to a secluded area of the playground (in a corner behind trees) to engage in these behaviours. By September 2014, [the child]'s sexual behaviour of concern was occurring daily. These incidents continued through 2015 when an incident occurred in February where [the child] stated, during sexualised play, that "when the man turns around she'll suck on his penis". A report by [the childcare centre] staff dated 24/9/2014 describes these behaviours as "forceful" and that [the child] was "secretive" about engaging in these behaviours. As a result, [the child] has been provided with additional supervision at the centre which has been effective in limiting her opportunities to engage in these behaviours."
Dr Piercy concluded by stating "[the child] entered [CXQ]'s care with developmental, emotional, relational and behavioural difficulties subsequent to her early life experiences. However, new behaviours were reported for [the child] in the period she was in [CXQ]'s care, most noticeably the emergence of concerning sexual behaviours. These have been excessive, secretive and coercive in nature and have involved explicit simulation of sexual activity in play, forcing other children to engage in sexual play and persistent touching of her and other children's genitals during play. These behaviours are significant beyond what is considered age appropriate exploration and are indicative of a childhood response to traumatic sexual experience for [the child], the nature of which is currently not able to be determined."
CXQ told Dr Piercy that she had been concerned about the niece's sexualised behaviour and that "[the child] talked about having sex, talked about male genitalia, tried to sit on top of boys and engaged in 'humping' actions. [CXQ] reports she is unsure why and how [the child] developed these behaviours, as she states [the child] was always supervised when her grandfather visited the home and had not observed adult sexual activity."
Dr Piercy was cross-examined by the solicitor for CXQ. The solicitor asked Dr Piercy about the child's presentation at the assessment and whether she agreed with the proposition that she could not distinguish between the impact of the traumatic experience the child suffered whilst in the care of her birth parents and the impact of any alleged traumatic experience while in the care of CXQ. Dr Piercy disagreed with the proposition. She stated that based on the severity of the sexualised behaviours and the fact that the child was removed from the care of her birth parents at 11 months of age, she believed the niece experienced the trauma more recently and it was not based on any trauma she experienced in her first 12 months of life.
Dr Piercy also stated that in her opinion the sexualised behaviour of the child was very clearly outside of the developmental realm of what might be expected of a child of this age.
In re-examination, Dr Piercy was asked whether she could describe the likely activity the niece may have been exposed to given the nature of her sexualised behaviours. Dr Piercy noted the very specific nature of the behaviour. She stated it was a "type of re-enacting sexualised behaviour" or "recounting a very specific scenario". Dr Piercy stated at the very minimum she believed the niece was exposed to inappropriate adult sexual activity. She was also concerned that more direct abuse could have occurred.
The evidence of Dr Piercy and her expertise was not challenged in the proceedings. From her evidence, the Tribunal concluded that the sexualised behaviour displayed by the niece at the childcare centre from July 2014 to February 2015 was clearly outside the realm of typical childhood sexual exploration or development. The sexualised behaviour, given its duration and severity and developmental timing, is most likely to have been caused by the niece being exposed to adult sexual activity in recent years and not in the niece's first 12 months. The Tribunal finds, therefore, the exposure was likely to have occurred during the placement of the child with CXQ from April 2012 until she was removed in March 2015.
CXQ gave evidence that she was protective towards her niece and denied the allegation that she exposed the niece to adult sexual activity during the placement.
The consultant, Ms Armstrong reported that CXQ may have exposed her niece to adult sexual activity when CXQ told Ms Armstrong in their second interview that "...sometimes she and [name of partner] would wait until [her niece] was asleep and then they'd try to start something and [her niece] would sit up and look and ask "what are you doing?" Sometimes male friends would sleep there in her room but would just sleep - nothing else." Ms Armstrong was cross-examined by CXQ's solicitor about this statement and the source of the statement. Ms Armstrong responded that the words were taken directly from her contemporaneous notes of the interview.
The Tribunal finds there is insufficient evidence to make a positive finding that on the balance of probabilities CXQ exposed her niece to inappropriate adult sexual activity. The Tribunal retains, however, a suspicion as to whether CXQ and her partner at the time engaged in the inappropriate behaviour referred to in the presence of the niece. This suspicion is based on the evidence of Ms Armstrong who took contemporaneous notes of the interview with CXQ when she made the alleged admission. It is also based on the type, frequency, duration and developmental timing of the niece's sexualised behaviour that occurred while in the care of CXQ and that CXQ could provide no satisfactory explanation for this behaviour or its origins.
As the Tribunal is required to assess the risk of harm to children, it must take that residual suspicion into account in making its findings. The shadow cast by this abiding doubt must, therefore, count against CXQ in these proceedings.
The allegation of exposing the niece to adult sexual activity is very serious. The Tribunal also notes with concern the view of Dr Piercy that the niece may have been subjected to more direct abuse. In the absence of other evidence, and on the balance of probabilities, no positive finding can, however, be made that such direct abuse took place. Moreover, as no allegation of this nature has been made against CXQ, the Tribunal makes no findings against CXQ in relation to the suspicions of Dr Piercy.

The period of time since those offences or matters occurred and the conduct of the person since they occurred.

Approximately three years have elapsed since the reports of harm were made regarding the three children and their removal from CXQ's care.
Since the removal of the children, CXQ has continued to seek help and support to address her mental health issues. She is also seeking the assistance of a GP to address her issues with alcohol.
The age of the person at the time of the offences or matters occurred.
CXQ was between 46 and 48 when the matters occurred.
The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.
The two nephews were 5 and 6 and the niece was 2 when the first report of risk of harm was made.
All three children were extremely vulnerable as demonstrated by the numerous risk of harm reports made to FACS when they were living with their birth parents.
The difference in age between the victim and the person and the relationship (if any) between the victim and the person.
CXQ is approximately 40 years older than the oldest child.
Whether the person knew, or could reasonably have known, that the victim was a child
CXQ is the aunt of the children and knew the victims were children.
The person's present age
The present age of CXQ is 52 years old.
The seriousness of the person's total criminal record and the conduct of the person since the matters occurred.
The majority of CXQ's criminal history arises from allegations and counter allegations between herself and her long-term partner, from whom she separated in May 2013. In or about 2006, CXQ was charged with Contravene Apprehended Violence Order. The complainant was her partner and the matter was dismissed pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 on condition that CXQ enter a 12 months Good Behaviour Bond. In the same year, she was charged with two counts of Destroy or Damage Property, and one count of Common Assault. The victim in these matters was her partner and the matters were again dismissed pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. She was also charged with Assault Occasioning Actual Bodily Harm against her partner but this charge was withdrawn.
In 2008, CXQ was charged with Common Assault. The complainant was her neighbour and the offence was dealt with by way of a section 9 bond for 12 months. In 2008 she was also charged with Drive with Mid-Range Prescribed Concentration of Alcohol. She was fined and disqualified from driving for 6 months.
CXQ has not been charged with any further criminal matters since 2008.
The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition
CXQ filed a report from psychologist, Ms Katie Martens, who interviewed her on two occasions in April 2017. She did not assess CXQ with any mental health diagnosis. She stated in her oral evidence that the risk that CXQ posed to children depended on a number of dynamic factors including her level of family support, her access to counselling and other community support, and her dependency on alcohol which she may have used in the past as a coping mechanism in times of heightened stress.
In her report of 23 April 2017, Ms Martens expressed reticence over CXQ's capacity to safely care for children within her home. In addressing the issue of risk, she stated: "In relation to whether [CXQ] poses an ongoing risk to children, whilst it is positive that [CXQ] is not currently within a violent relationship, and is accessing supports for mental health concerns, concerns remain regarding her use of alcohol, instability in home and lifestyle, ongoing negative view of self and vulnerability within relationships, lack of insight into the potential harm arising from her previous care of children, and lack of engagement with intervention to target effective parenting practices. For this reason, I hold some reticence over her capacity to safely care for children within her home. With regard to her risk to children within a workplace setting, it has not been indicated that any concerns have previously been raised. All concerns relating to her treatment of children have been raised in relation to her acting in a largely unsupervised parenting role for which she appears to have been poorly equipped. It is suggested that within a structured supervised workplace environment, [CXQ] would be unlikely to cause harm to children. It is suggested that [CXQ] does not represent a risk of harm to children generally, however within a custodial/foster parent role risk has been identified. This risk can be completely managed by the withdrawal of her authority to provide foster care to children."
The solicitor for CXQ submitted that CXQ has insight in relation to when she has struggled in her personal life and with her mental health and, as a result, has sought help. This reduces the likelihood of any repetition of the alleged offences and incidents. For example, CXQ has been diagnosed with complex PTSD related to early experience of threat of violence and abuse together with anxiety and depression. She sought assistance and treatment from the local health service and is seeing a counsellor. When her mother passed away earlier last year, she again immediately made an appointment to see her counsellor.
Any repetition of assaulting a child, and exposing a child to domestic violence and adult sexual activity, has the potential to cause significant harm to the child. There are numerous case studies that have documented the often devastating and lasting impacts of child sexual abuse on children and how this can continue into adulthood.
Any information given in, or in relation to, the application.
It was submitted by CXQ's solicitor that CXQ had acted protectively in November 2013 when she observed her niece's vagina to be red while putting on her the child's nappy. She felt something was wrong and immediately took the child to the doctor who then reported the matter to JIRT. JIRT undertook an investigation but they took no further action.
Annexed to CXQ's affidavit is a report from her current treating psychologist that supports her submission that she is addressing her mental health and lifestyle issues. In the affidavit the psychologist states: "…I saw [CXQ] on average every three weeks through the rest of 2014 to early 2016…[CXQ] cycled through periods of depression however showed her resilience by returning to treatment with a determination to gain a measure of control of her life including her health. She worked to finish destructive relationships and to find more productive ways of negotiating family conflicts…earlier this year following the death of her mother she again returned to treatment. She has fresh resolve to manage her health better, to hold onto her gains in self-esteem and to stay focused on her goals including finding meaningful work and building a healthy lifestyle. Her willingness to appeal the working with children check is an indication of the gains she has made in supporting herself. [CXQ] has considerable insight and remains determined to build a productive and healthy life".
CXQ filed two character references. One of these referees, Ms AA, gave oral evidence to the Tribunal. She stated that she had known [CXQ] for 4 years and had observed her interacting with her own children and she treats them like her extended family. She would have no hesitation in allowing [CXQ] to spend time with her own children. The other referee had known her for 3 years. She agreed that [CXQ] struggled at times to manage the three children as they were children with high needs and [CXQ] had never had children of her own and lived a single life until the children came into her care. However, she had observed [CXQ] to be caring, loving and responsive to children. She stated, "[CXQ] interacts with children in a way that puts them at ease; they are happy and comfortable in her presence. I would not have any reason to be concerned about children or young person's being in her care".

j1) Any relevant information in relation to the person that was obtained under section 36A

There is no such information.
Any other matters that the Children's Guardian considers necessary.
The respondent, the Children's Guardian, opposed the application and submitted that CXQ continued to pose a risk to the safety of children and the application should be refused.
Counsel for the respondent referred to the opinion of the psychologist, Ms Martens, who could not give an unqualified view that CXQ did not pose a risk to the safety of children. Counsel refuted Ms Marten's suggestion that any risk could be managed by revoking CXQ's authority to provide foster care. That is, Counsel noted that the Tribunal cannot impose any conditions on a clearance.

Consideration

There is no disagreement that all three children placed in the care of CXQ in April 2012 had high and complex needs and were the subject of numerous ROH reports prior to coming into her care. The Tribunal acknowledges CXQ was placed in a very difficult position in making herself available to take over their care. That is, on her own admission, CXQ had virtually no previous experience in caring for children and was ill-equipped to care for such high needs children and was, at times, overwhelmed by the situation. The Tribunal accepts her evidence that she now has more insight regarding the way she managed their difficult behaviour and that physical discipline and shouting can potentially harm children.
However, after considering the paramount objective of the Act, namely the safety and welfare of children, the Tribunal finds that, on the evidence before it, CXQ does pose a real and appreciable risk to the safety of children. While the Tribunal is not satisfied that the most serious allegations against CXQ have been proven, it has taken account of the following matters to reach its decision: 1. The Tribunal finding that CXQ physically smacked and yelled at the children during the placement; 2. The Tribunal finding that there was a lingering doubt or suspicion regarding the allegations that CXQ may have seriously assaulted the children as described in the ROH reports; 3. The Tribunal finding that there was a lingering doubt or suspicion that CXQ and her partner at the time, may have exposed the niece to inappropriate adult sexual activity; and 4. The evidence of the psychologist, Ms Martens, who expressed a "reticence" over CXQ's capacity to care for children in her home. She suggested that within a structured, supervised workplace environment, that CXQ would be unlikely to cause harm to children. She also suggested that any risk could be managed by the withdrawal of CXQ's authority to provide foster care to children. As submitted by the respondent, there is no capacity for the Tribunal to impose conditions on a clearance. If she is granted a clearance she could potentially work with any child, of any age, in any circumstances, without supervision.
For these reasons, the Tribunal is satisfied that CXQ poses a real and appreciable risk to the safety of children. The Tribunal also notes, however, Ms Marten's opinion set out in her report of 23 April 2017, that with appropriate therapy such risk could be minimised.
As the Tribunal is not considering making an order enabling CXQ to work with children, there is no need to address the requirements of section 30(1A) of the Act.

Order

The Tribunal finds, therefore: 1. The decision of the Children's Guardian to refuse the applicant a working with children check clearance is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2018

Applicable Law and legal principles

The object of the Child Protection (Working with Children) 2012 Act ('the Act') is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; s3 of the Act.
The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; s.4 of the Act.
The Children's Guardian will consider those matters set out in s.15(4) of the Act in making a risk assessment. The Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children; s.18(2) of the Act.
A person who has been refused a clearance may apply to the Tribunal for an administrative review of the decision; s.27(1) of the Act. The applicant must fully disclose to the Tribunal any matters relevant to the application; s.27(4) of the Act.
In this administrative review, neither party bears the onus of proof. There is no presumption that CXQ poses a risk to the safety of children as would be the case under s28(7) of the Act if she was a disqualified person. See McDonald v Director General of Social Security (1984)1 FCR 354; 6 ALD 6. Woodward J there observed in relation to the AAT (at 356-357(FCR): There is certainly no legal onus of proof arising from the fact that this is an "appeals" tribunal, because the AAT is required, in effect, by s 43 of the AAT Act, to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, (not the material before the administrator, Drake v Minister for Immigration & Ethnic Affairs (1979) 24 ALR 577 at 589) make its own decision in place of the administrator's.
An application under s.27 is a merits review and not a review in which the applicant must show that the decision maker was wrong: Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No.2) (1981) 3 ALD 88.
The jurisdiction of the Tribunal under s 27 of the Act is protective of children and not punitive of an applicant: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111; R v Commission for Children and Young People [2002] NSWlRComm 101.
The issue for this Tribunal as required by s.18(2) of the Act is whether CXQ, on the balance of probabilities, poses a risk to the safety of children. Young CJ in Commission for Children and Young People v V (2002) NSWSC 949 considered the test to be applied is: "...whether, in all the circumstances, there is a real and appreciable risk, in the sense of a risk that is greater than the risk of any adult preying on a child. One, however must link the word "risk" with the words that follow, namely, to the safety of children".
The Tribunal may not make an order on conditions, whether under section 27 or 28 of the Act. BJB v Children's Guardian (No. 2) [2014] NSWCATAD 164
The approach the Tribunal should take to untested allegations was considered by Beech-Jones J in paragraph [33] of BKE v Office of the Children's Guardian [2015] NSWSC 523 as follows: "...it may be that NCAT can be satisfied that [on the evidence] an allegation of sexual abuse against an applicant is established [to the requisite civil standard]. Equally NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding an incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
In Office of Children's Guardian v CFW [2016] NSWSC 1406, Harrison J gave further consideration, at [14] to [17], stating that: The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has "no hesitation in rejecting the allegation as groundless". A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a "decisive impact" on the outcome of the application. The second proposition is that, even if no such "positive finding" can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is "groundless". The task to be performed in the context of the legislation considered in M v M was described at 77 to be to: "... determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare." Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. A court or tribunal may make a finding of "real and appreciable risk" even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left "open", the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.
In determining this application, the Tribunal must first have regard to the factors set out in section 30(1) of the Act. If the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30(1A) of the Act.

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