CHILDRENS COURT OF QUEENSLAND

CITATION:	SLA v Director of Child Protection Litigation & Ors [2022] QChC 26	
PARTIES:	SLA
(Appellant)
v
DIRECTOR OF CHILD PROTECTION LITIGATION
(First Respondent)
and
HLC
(Second Respondent - 1588/21)
and
KXJ
(Second Respondent – 1590/21)
and
MUSTAFFA, Hazrabee 
(Separate Representative)	
FILE NO:	1588/21
1590/21	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to s 117 of the Child Protection Act 1999 (Qld)	
ORIGINATING COURT:	Childrens Court of Queensland	
DELIVERED ON:	16 December 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	5 April 2022	
JUDGE:	Devereaux SC CJDC	
ORDER:	1.	Appeal dismissed. 	
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – APPEAL - where an order for long-term guardianship of two children to the Chief Executive was made – where the appellant appeals the order 	
LEGISLATION:	Child Protection Act 1999 (Qld) ss 5A, 5B, 5BA, 5D, 5E, 10, 59, 105, 120	
SOLICITORS:	Appellant was self-represented.
G Murray, Office of the Director of Child Protection Litigation for the first respondent.
Second respondent (1588/21) no appearance.
Second respondent (1590/21) was self-represented.
R Cameron, HM Lawyers for the separate representative. 	
Introduction
[1]	This is an appeal against the decision of Magistrate Gilbert, made on 27 May 2021, granting long-term guardianship of two children, IH and TS, to the Chief Executive (Child Safety).
[2]	IH was born on 30 May 2013.  TS was born on 15 July 2014.  The appellant is their mother.  She was born on 20 July 1980.  
[3]	Before making the decision in relation to each child the learned magistrate had to be satisfied of the following:
1.	 The child was in need of protection – this required proof that 
(a) the child has suffered or is suffering or is at unacceptable risk of suffering significant harm; and 
(b) does not have a parent able and willing to protect the child from the harm - and the order was appropriate and desirable for the child’s protection;
2.	There was a case plan that included living arrangements and contact arrangements for the child;
3.	There had been a conference;
4.	The child’s ascertainable wishes were made known;
5.	The protection sought was not likely to be achieved by an order on less intrusive terms; 
6.	No parent was willing and able to protect the child within the foreseeable future; or the child’s need for emotional security would be best met in the long term by making the order.
[4]	The learned magistrate considered all of the requirements, assessed the available evidence against the principles set out in sections 5A, 5B, 5BA, 5D and 5E of the Child Protection Act 1999 (the CPA) and made the orders.
[5]	The appeal challenges the orders on the following grounds:
1)	The Magistrate erred in making the order sought by the Applicant because her Honour incorrectly found that the mother was not a parent able to protect the child from harm within the meaning of sections 10 and 59(1)(a) of the Child Protection Act 1999 (Qld);
2)	The Magistrate wrongly made and overly intrusive order; and
3)	The Magistrate failed to give adequate reasons for the making of the decision.
[6]	As well as the materials that were before the learned magistrate, the record, upon which the appeal is considered, included the transcript of the hearing and the reasons for decision, the submissions of the Director of Child Protection Litigation and the Separative Representative and a document filed by the appellant.
[7]	Neither father took part in the hearing below.  At the hearing of the appeal, the father of one of the children appeared by video link.  The other father did not engage with the appeal.
[8]	For the following reasons, I am satisfied the learned magistrate did not make the errors submitted by the appellant and that the appeal must be dismissed.
Ground 1
[9]	The learned magistrate concluded the mother was willing, but not able, to protect the children from the unacceptable risk of significant harm by reference to the following.
[10]	By way of background, the appellant lives in Sydney with her current partner.  She has several other children.  A child born in September 2005 lives at a regional New South Wales town with his father.  The appellant and her current partner have a son, born 8 June 2017, who has been removed from the parents by the New South Wales child welfare authority.
[11]	The two children the subject of the appeal have been subject to more than one previous protection order.  It follows that the Childrens Court has made findings on three occasions that IS was in need of protection and did not have a parent willing and able to protect him from harm.  Similar findings have been made twice in respect of TS. 
[12]	The learned magistrate appreciated fully the steps the appellant had made to deal with the concerns raised by the application.  Her honour set out a list which included providing clean drug screens over three years; a decrease in the methodone dose; developing a relapse prevention plan; receiving a monthly injection which successfully treated her mental health symptoms; undertaking dialectical behaviour therapy until October 2019; after counselling, the appellant was considered drug abstinent by July 2019; recently receiving a grant from the NDIS; maintaining part time work as a waitress for four years; completing four parenting programs in 2018; with her current partner, spending unsupervised time with their son; not hospitalised since 2018; stable accommodation for four years.
[13]	I read the magistrate’s list to the appellant at the hearing of the appeal.  She commented: That’s pretty much my evidence.
[14]	The appellant has made considerable progress without significant input form Child Safety in Queensland.
[15]	Despite the stability of the appellant’s mental health since 2018, there is a long-standing diagnosis of bipolar disorder, post traumatic stress disorder, depression and anxiety.   As at 2016, the appellant had experienced 250 critical suicide attempts.
[16]	At the time of the hearing, the appellant had not had fulltime care of any of her children for years and, the learned magistrate considered, showed limited understanding of the issues and difficulties the children would face, were they transitioned to her care in Sydney, away from the only primary care givers they had known.  This concern was founded in the social assessment report of Rosalin Primrose, Registered Psychologist.  Her assessment included:
“When asked about the possible impact upon the children of ending their foster placements, severing their primary attachments and removing them to Mt Druitt, the mother gives no sign of having much insight.”
[17]	There was other evidence which the learned magistrate did not expressly refer to which would support the conclusion that the appellant, though willing, was not able to protect the children from harm. 
[18]	The appellant conceded, under cross examination, that she experiences good and bad periods of mental health, although she would consider herself relatively well for several years.  She requires a carer, who is her current partner, who is responsible for ensuring she attends appointments.  She also has a support worker through the NDIS. One previous child safety officer, Elizabeth Parker, informed the court that the appellant at one point abstained from using illicit drugs for seven years but relapsed into significant drug use.  So, the risk of relapsing into drug use remains, and would be catastrophic for the children.  The witness advised the court that the appellant had not remained engaged with mental health services.
[19]	The appellant consulted a psychologist weekly from 11 December 2019 to March 2020.  
[20]	As to her substance abuse, the point was made by Elizabeth Parker that although the appellant attended reliably for methadone, that merely provided a substitute drug and did not address substance abuse, the latter being necessary to reduce the risk of harm to the children were they in the appellant’s care.
[21]	In summary, the learned magistrate expressly concluded the appellant was not able to protect the children from harm.  This was based on evidence her honour addressed.  There was other evidence which, if her honour did not expressly refer to it, supported the conclusion.  The appellant has not shown error in this part of the decision.
Grounds 2 and 3
[22]	Little need be said about grounds 2 and 3.  The learned magistrate was clearly aware of the need not to make an unnecessarily intrusive order.  Her honour noted the requirements set out in s. 59 of the CPA, in particular, the “further safeguards in relation to long term guardianship orders” in subs. 59(6).  Her honour addressed these.  Although they are expressed in the alternative, her honour found both, the first impliedly and the second expressly, at [31-33] of the reasons.  Both findings were supported in the evidence.  Most clearly, given the lengthy period the two children had spent with their current carers, her honour said:
“I consider there is no other conclusion to draw but that each child’s emotional security is best met by the making of a long term order, one which allows them to remain with their current carers.  I consider that the children’s need for permanency has now become of critical importance since they have been the subject of departmental intervention for over 7 years.”
[23]	I respectfully agree with the learned magistrate’s formulation based on the material.  It included the advice of Gary Owen Shepherd, solicitor, social worker and mediator, who had prepared reports on the child IH.  He said: 
“Even 21 months ago, … my assessment was that he was primarily attached to those carers.  Whilst I appreciate the mother has made some gains in that time, the overriding factor for me at this juncture is the child’s attachment to his carers and just the inordinate length of time [nearly 8 years] that he has already been in [their] care.”
[24]	The learned magistrate’s expression – “no other conclusion to draw” – demonstrated her honour clearly understood the seriousness of the order sought and the matters required to be shown so that the Court did not make “an overly intrusive order”.  
[25]	Section 104(2) of the CPA provides that the Court must state its reasons for decision.  The reasons given below were not lengthy but was at least adequate to explain the matters to be addressed and the conclusions reached based on evidence led in the proceeding.  It does not undermine the reasons that the judicial officer did not refer to every piece of evidence, particularly where a significant body of evidence was to be considered.
[26]	The appeal is by way of rehearing on the evidence and proceedings before the Childrens Court.  The appellant has not demonstrated error in the magistrate’s reasons.  The appellant informs the Court, in her written submission, that she believes she is ready and capable of having her children back in her care; she misses them and has done what she can to prove her eligibility.  It is no small thing to order that children live with a carer other than a willing parent until the age of 18 years.  But the proper application of the principles for administering the CPA, particularly the paramount principle – that the safety, wellbeing and best interests of a child are paramount - to the materials before the court lead one to conclude the matters required were proven on the balance of probabilities. The appeal must be dismissed.