Date: 14 July 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Paratz AM, Member Ellis, Member Quinlivan (Presiding Member)
Human Rights Act 2019 (Qld) Sections: ss 4(b), 4(f), 58(5)
Rights Considered: N/A
Other Legislation: Child Protection Act 1999 (Qld), s 135; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1); Child Protection Regulation 2011 (Qld), reg 23
Keywords: Child protection

This case concerned an application by HMD for review of a decision made by a delegated decision maker of the Department of Child Safety, Youth and Women. The Manager refused an application by HMD who sought to become a kinship carer for AR, HMD’s great granddaughter. The Department submitted that it had taken into consideration the relevant provisions of the Human Rights Act 2019 (Qld) in making its decision.

On 18 December 2018, a delegated decision maker from the Department of Child Safety, Youth and Women (‘the Department’) refused an application by HMD who sought to become a kinship carer for AR, her great-granddaughter. Following a series of interactions between HMD and the Department in September 2019, the Department determined that HMD was unable to work collaboratively with them and that this cast doubt on her ability to prioritise AR’s needs above her own. The Department also determined that ‘“the complex set of dynamics in [HMD’s] household would not be a safe environment for (AR),”’ given that she was assisting AR’s mother with her drug addiction: at [15]. Furthermore, the Department argued that HMD’s age caused legitimate and well-founded concerns about her long-term ability to meet AR’s ongoing needs, as she would be 90 years old when AR turned 18 years old.

HMD submitted, inter alia, that her age should not exclude her from being AR’s full-time carer, and that it was in AR’s best interests to be with family: at [36]. The Department submitted that, in making its decision, ‘it had taken into consideration the relevant provisions of the Human Rights Act 2019 (Qld) and that it is both reasonable and necessary to assess a person’s capacity to care for children on an ongoing or long-term basis with reference to their likely functional capacity’: at [51]. This is because the object of the Child Protection Act 1999 (Qld) is to protect children from harm. Thus, the Department maintained that it was entitled to consider a proposed carer’s age when assessing their suitability to become a kinship carer.

Further, the Department preferred that HMD’s role be limited to just great grandmother of AR, as this did not involve the oversight and regular assessments that being a kinship carer within the Regulation of Care Framework would. The Department also submitted an alternative scenario whereby ‘[i]f the tribunal is not with the Department in terms of this proposal for (HMD) to have substantial and significant contact with (AR) as her great-grandmother in place of a statutory role as a kinship carer, then the Department would invite the tribunal to consider making an order under section 24(1)(c) of the QCAT act to invite the department to consider granting (HMD) a time-limited role as a respite kinship carer for a period of two to three days per fortnight, accompanied by other conditions to protect (AR) from unauthorised and unmanaged contact with (AH)’: at [80].

Having regard to the submissions of both the Department and HMD, the Tribunal supported the Department’s proposal to restore HMD ‘to the status of a kinship carer, but in the role of a respite carer’: at [82]. The Tribunal ordered that pursuant to section 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision of the Department to refuse HMD’s application to be kinship carer for AR be set aside and the matter be returned to the Department for reconsideration: at [83]. The Tribunal also directed that the Department consider granting HMD the role of respite carer for two to three days per fortnight: at [84].

Visit the judgement: HMD v Department of Child Safety, Youth and Women [2020] QCAT 272