Court refuses bid to remove First Nations toddler from mother’s care

A north-west Queensland court has refused a government department’s temporary protection order application to remove a 16-month-old First Nations child from her mother – saying short-term placement in foster care would likely result in the child being “exposed to the new trauma of being placed with strangers”.

Mount Isa Childrens Court Magistrate Eoin Mac Giolla Ri on Friday (2 Dec) dismissed an application from Queensland’s Department of Children, Youth Justice and Multicultural Affairs (the department) to remove a toddler – identifiable only as Emily – from her mother’s care.

The court, during a four-day hearing starting on 28 November, was told the application was made by a department officer who worked as a Senior Child Safety Officer based in Mount Isa and had requested Emily be removed from the care of her 28-year-old Indigenous mum.

Mr Mac Giolla Ri said the principal issue of the hearing was to consider whether there was an unacceptable risk Emily would suffer harm if a protection order was not granted.

“(The department’s) case is that I should infer from the (mother’s) care of Emily over the first 16 months of her life that Emily is at an unacceptable risk of suffering harm if she remains in (her mother’s) care for the one to two week period until an agreed placement … (with another family member) can begin,” he said.

The court was told Emily’s mother was willing and prepared to allow for her daughter to be removed from her care, but to be placed with an Indigenous family member.


Mr Mac Giolla Ri noted the department was in agreement the family member would be a suitable placement for Emily, but that could not take place for several weeks and, as such, a protection order was sought that the child move into temporary foster care.

In a 15-page decision delivered on Friday, Mr Mac Giolla Ri spends considerable time balancing the best interests and safety of Emily in deciding whether to allow her to remain with her mother temporarily, until family can provide the toddler ongoing care, or, remove her to be cared for by strangers.

“If I were to make the order, the advantage in terms of Emily’s best interest would be that Emily will be removed from the risk of being harmed by (her mother’s) neglect, drinking and irrational behaviour,” Mr Mac Giolla Ri.

“If I do not make the order, Emily will remain in (her mother’s) Ms Ward’s care for a further one to two weeks.

“It is difficult to assess the impact a couple of weeks of the same type of life that Emily has experienced for 16 months would have on Emily. While appreciating that harm can be cumulative, it was difficult to see that two more weeks is likely to harm Emily to any substantially greater extent than any harm that has already occurred.

“The disadvantage of making the order is that Emily will, necessarily be exposed to the new trauma of being placed with strangers for a one to two week period between the making of the order and her placement with (a family member).


“I find with a high degree of certainty that such a placement will cause a 16 month old child harm. I suspect that it would cause substantial harm, though I cannot quantify that harm in a more meaningful way due, in part, to the absence of relevant information in the (the department’s) applicant’s material, which is relevant given the onus of proof.

“Though the harm caused by the short placement in foster care may not be profound in nature, the harm is almost certain to arise.”

Mr Mac Giolla Ri said his conclusion was not a finding that foster care was not an appropriate form of care for children who need to be removed from their parents.

“The undoubted trauma and distress a child will suffer on being removed from its parent(s) will often be a price well worth paying to remove a child from an abusive or neglectful family situation,” he said.

“It is likely, in my view, that the harm caused by the proposed short placement in foster care is equal to or greater than the harm that will be caused by allowing Emily to remain in the left (sic) she knows for one to two more weeks.

“The onus is on the (department) to prove to me that Emily will be at an unacceptable risk of harm if I do not make the order. As discussed above, Emily is at risk of harm whether or not I make the order.”


Mr Mac Giolla Ri refused the order.

Read the decision.

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