ACT Civil and Administrative Tribunal grants compensation after Child Youth and Protective Services denied grandma kinship custody

The woman was charged with offensive behaviour in a public place and breaking out of custody in 1987, when she was 17-years-old. She was put on a 12-month good behaviour bond for $100 for the offensive behaviour, and charged $50 for escaping from custody.

The grandmother was also charged with drink driving in 2010, receiving a $500 six-month good behaviour bond.

She has four children, and applied to be a kinship carer for three of her grandchildren in 2016. A kinship carer is someone caring for a child they are related to.

In a document stating why the woman had been denied kinship care of her son's three children, a Child and Youth Protection Services case officer wrote:

"I have not assessed [the complainant] as a suitable entity as a kinship carer as there is a history of a conviction in relation to drive motor vehicle with alcohol in blood, 2 times offensive behaviour in a public place and escape, break out of custody [sic].

"CYPS are not confident [the complainant] could carry out the daily and or long term responsibilities on a consistent basis in order to meet all the children's [names redacted] needs.

"There are issues pertaining to her criminal history and the child protection history involving her children."

The document also said that "on the same day in 2014 [the complainant] telephoned 4 times and threatened to kill herself and the police attended the property to check her welfare".

The grandmother asked child services to review their decision multiple times. Reviews in 2017, 2019 and two in 2021 all came to the same decision.

In August 2019, the woman emailed the Human Rights Commission to complain about the decisions.

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She said she believed child protection were confusing her with another family with the same surname.

"Child protection and legal aid often referred to the grandchildren as being [Aboriginal] which we are not. There is another family with the name [redacted] and I am concerned that they are again confusing information.

"They made numerous mistakes like this with my own children and were referring to other families. Child protection and other departments don't read paperwork properly and sometimes not at all. This is disturbing."

Tribunal senior member Mark Hyman said the grandmother's criminal history was not directly relevant to her application to be a kinship carer for her grandchildren.

"I have no hesitation in finding that the impugned action took into account an irrelevant criminal record under the Discrimination Act," he wrote.

In July 2022, child services said the woman's criminal history did not play a significant part of the reason she was denied custody.

However, Mr Hyman found that in the final summary of why the grandmother was denied custody in 2016, her history with child services as a mother and her criminal history "are referred to with equal emphasis".

"The two sentences that appear under the heading 'Statement of reasons' say first that she is willing to be a kinship carer and then note that because of her criminal record and child protection history, she is not suitable," he wrote.

"At no stage is any attention given to the relevance of the criminal history."

Mr Hyman did not say child services was wrong to deny the woman care of her grandchildren. He said the same decision would have been made without considering the criminal record.

Child services was ordered to pay the grandmother $5000 in compensation to recognise the difficulties she has been put through.

Mr Hyman ordered Child and Youth Protective Services to consider whether a person's criminal record was relevant to their application to become a kinship carer. He also advised they look more widely at decisions made in similar situations.

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