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

A court has refused a government department’s application to remove a 12-year-old First Nations boy with a disability from his mother’s care after it was revealed the agency itself had no actual placement solution for the child.

A remote north-west Queensland Childrens Court magistrate last week delivered a withering assessment of a Department of Childrens, Youth Justice and Multicultural Affairs application to remove a boy – called ‘Tom’ – from the care of his mother, Jessica Spencer (a pseudonym).

The department sought an order placing Tom, who is profoundly autistic, non-verbal and exhibits some unusual behaviours”, in its care and restricting his contact with his mother despite their “good personal connection” and very close maternal relationship.

However, Magistrate Eoin Mac Giolla Ri criticised the department application in an eight-page decision published yesterday which noted the agency’s lack of its own adequate care and placement plan for Tom.

“In my view the application is not a valid application because there is no statement of the proposed arrangements for Tom’s care,” he said. “The application runs to 51 paragraphs over 18 pages, but the purported statement of proposed care runs to only 14 words: ‘Tom will be placed with a departmentally approved carer while kinship options are explored’.

“Upon enquiry it transpired that no placement had actually been obtained for Tom and that no placement could or would be obtained for Tom until after I had made the order sought.


“I can imagine that there might be circumstances in which administrative convenience could warrant such an approach, but such a scheme is at odds with the statutory requirement that the application state the proposed care arrangements.”

The court was told Tom usually lived in a remote community with his mum, although his primary carer was his maternal grandmother.

“Jessica sometimes drinks too much, has limited access to housing and has a violent partner,” Mr Mac Giolla Ri said. “These attributes make her a poor primary carer for Tom.

“She has a good personal connection with Tom, which appears to comfort Tom and limits some of his unusual behaviours but … she is not his primary carer – that role is played by his grandmother, Judy.

“In this particular case, where Tom’s care needs are vast, I am left in a position of not having a care arrangement to consider. In my view this is contrary to the necessary implication in the legislation that I must consider the care arrangement before making an order.

“Moreover, I find that Tom’s diagnosis and behaviours are such that, even if he were removed from his mother he would not stay at a care home, however suitable, and would simple leave and try to find her.


“Even if I am wrong about the validity of the application and the suitability of the placement, taking Tom into the care of the Department is not the answer to Tom’s particular needs at the moment.

“Although I accept there is some risk to Tom in his current circumstances, there is less risk than if I were to separate him from Jessica and it is in his best interests that I do not make the order.”

In December last year, Mr Mac Giolla Ri refused the same department’s application to remove a First Nation’s toddler from her mother’s care – saying short-term placement in foster care would likely result in the child being “exposed to the new trauma of being placed with strangers”.

Read the decision.

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