Mia Buckley* is a 14-year-old Indigenous girl with an intellectual disability, she is in the custody of the state of Queensland and lives in a government-funded residential care home.
In October, Mia gave birth to a baby boy. When she returned home from hospital, the residential care facility, after receiving advice from the state child safety department, refused to take the infant.
A children’s court magistrate, Eoin Mac Giolla Ri, published a judgment this week critical of child safety authorities’ handling of the case. He said the department had failed to properly plan for the arrival of Mia’s baby and that the circumstances of its application for a child protection order for the newborn were “deeply troubling”.
Mac Giolla Ri ruled that a child protection order would not be necessary in circumstances where the teenage mother was herself provided adequate and supportive care. The state’s pursuit of a court order amounted to “a bet against the level of care the department would provide for Mia”, he said.
Mia (a pseudonym assigned by the children’s court) had been in the custody of a legal guardian for nine years. The court documents show that, in early 2023, Mia’s guardian became unable or unwilling to deal with her antisocial behaviour and relinquished her care to the child safety department.
About the same time, Mia became pregnant. After the baby was born in late October – before Mia had been discharged from hospital and before the child had been named – the department applied for a temporary custody order. Mac Giolla Ri refused the order, on the basis that the baby was not at risk of suffering if an order was not made.
“Although Mia’s intellectual disability is significant, the evidence before me suggested that the care arrangements for Mia and the baby were good and that there was little or no risk of Mia declining that assistance,” the magistrate said.
In the following days, Mia left the hospital with the baby. She was told she could not take the baby to the residential care home where she lived.
Correspondence obtained by the court showed that an officer of the child safety department had said the residential care home “would be carrying significant risk, as without an order they would not have a legislative framework around the child to take action”.
“They would only be able to notify and would not have any authority to step in and take action if something were to go wrong,” the officer said.
Mia returned to the home of her legal guardian with the baby.
At 6pm on 30 October, the child safety department brought a second application for a temporary custody order, the circumstances of which Mac Giolla Ri described in his judgement as “deeply troubling”.
“If Mia is given the care the department should be giving her, the baby’s circumstances do not meet the criteria for the making of the order sought. The only circumstances justifying the order have come about through the department’s conduct,” he said.
Mac Giolla Ri said the department had been on notice since at least 13 May that Mia was pregnant “giving it ample opportunity to plan for Mia and the baby’s care”. He described the state’s actions as a “failure to plan appropriately” for Mia.
“The department seems to have planned only on the basis that it would necessarily get a protection order for the baby, with no consideration being given to the alternative.
“The idea that a residential care worker would not be able to intervene to protect the baby without an order is not correct.”
Mia’s legal guardian sought the right to take care of Mia and her baby. The department opposed them returning to the guardian’s home. The judgment states that separate litigation is on foot in relation whether the guardian should continue to be Mia’s legal guardian.
Mac Giolla Ri ruled that, on balance, the child would be at unacceptable risk of harm if a temporary custody order was not made, due to unsuitability of the legal guardian, and the residential care home refusing to care for the child without such an order.
“I further find that the refusal is, in all likelihood, a result of the department’s failure to plan appropriately for Mia.
“The department’s confidence that it would get a child protection order in relation to the baby is troubling because such a stance is, in effect, a bet against the level of care that the department will provide for Mia.”
* Not her real name
