ACS v Department of Family and Community Services

10There is no dispute that the decision of the respondent to remove the boys from the applicant's care is a 'reviewable decision' by the tribunal: see section 38 of the ADT Act, paragraph 28(1)(a) of the Complaints, Reviews and Monitoring Act and paragraph 245(1)(c) of the Care Act. The role of the tribunal on review is to determine whether the decision of the respondent is the correct and preferred decision having regard to the applicable written and unwritten law and the relevant factual material: see subsection 63(1) of the ADT Act. The tribunal sits in the shoes of the respondent and makes the decision afresh as at the date of hearing: see subsection 63(2) of the ADT Act and Drake v Minister for Immigration and Ethnic Affairs [1979] AAT 179, (1979) 46 FLR 409. In determining this application, the tribunal may decide to affirm the respondent's decision, to vary that decision, to set aside that decision and make a decision in substitution thereof, or set aside that decision and remit it for further consideration by the respondent: see subsection 63(3) of the ADT Act. In addition to this, the tribunal is given the power to make recommendations under subsection 32(2) of the Complaints, Reviews and Monitoring Act. Such recommendations are to be made 'for consideration by the person who made the decision concerned or the relevant Minister, if the decision was made by a service provider ...' A service provider is defined in section 4 of that Act to include the respondent.

11The Care Act- In regard to the substantive application (i.e., a review of the respondent's decision to remove the boys from the applicant's care) the relevant legislative provisions are those set out in sections 7, 8, 9 and 10 of the Care Act. These sections set out the objects and principles of the Care Act and how they are to be applied in the administration of the Act. 12Section 7 provides that the objects and principles are to give guidance and direction in the administration of the Act, but do not 'confer on any person, any right or entitlement enforceable at law'. The respondent was required to have regard to these objects and principles when making its decision to remove the boys from the applicant's care and the tribunal is similarly required to have regard to them in making its determination as to the correct and preferred decision. Accordingly, we have set out these provisions below. 13Section 8 contains the objects of the Care Act, which are in the following terms: 8 What are the objects of this Act? The objects of this Act are to provide: (a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and (b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment. 14Section 9 sets out the principles for the administration of the Act, which provides: 9 Principles for administration of Act (1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount. (2) Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows: (a) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances. (b) In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person. (c) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child's or young person's development. (d) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved. (e) If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child's or young person's circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement. (f) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community. 15Section 10 makes provision for a child or young person to be a participant in decisions, made under or pursuant to the Care Act, that have a significant impact on his or her life. 16The ADT Act- The objects of the ADT Act includes the following: S 3 Objects of Act The objects of this Act are as follows: (a) ..., (b) ..., (c) ..., (d) to provide a preliminary process for the internal review of reviewable decisions before the review of such decisions by the Tribunal, (e) to require administrators making reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for their decisions on request, (f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs, (g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales. 17As we have already mentioned, the decision of the respondent is a 'reviewable decision'. Section 48(1) of the ADT Act provides that where an administrator makes a decision that is a 'reviewable decision' the administrator is required to give notice of that decision (an original decision) to the person concerned. That subsection is in the following terms: 48 Notice of decision and review rights to be given by administrators (1) An administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following: (a) the decision, and (b) the right of the person to have the decision reviewed. (2) ... 18Subsection 48(2) contains some exceptions to the requirement in subsection 48(1), which are not relevant to this application. 19Section 53 of the ADT Act sets out the internal review mechanism for the review of an original decision that is a reviewable decision. It relevantly provides: 53 Internal reviews (1) Who may apply for an internal review If an administrator makes a reviewable decision, an interested person may apply for an internal review of that decision under this section. (2) Requirements for an application ... (3) Who is to deal with an application? An application for an internal review of a decision is to be dealt with by an individual (other than the administrator) who is directed to do so by the administrator (the internal reviewer). The internal reviewer directed to deal with an application must be, as far as is practicable, an individual: (a) who was not substantially involved in the process of making the decision under review, and (b) who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed, and (c) who is otherwise suitably qualified to deal with the issues raised by the application. (4) Material to be considered In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant. (5) Review of the application Following the internal review of the decision, the internal reviewer may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a decision in substitution for the decision that is set aside. (5A) Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant enactment or other law that the administrator had in making the decision being reviewed. (5B) Reviewer to notify administrator of decision An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision. (6) Notice of result of review and appeal rights Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of: (a) the outcome of the internal review, and (b) the reasons for the decision in the internal review, and (c) the right of the person to have the decision reviewed by the Tribunal. (7) Statement of reasons For the purposes of subsection (6), an applicant is notified of the reasons for a decision in an internal review only if the applicant is given a statement of reasons setting out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the understanding of the internal reviewer of the applicable law, (c) the reasoning processes that led the internal reviewer to the conclusions the reviewer made. (8) ...

Evidence 20In support of its case, the respondent tendered into evidence a statement by Mr M (dated 16 January 2012), the internal review decision maker, and Ms C (dated 12 July 2011), the original decision maker. Mr M and Ms C both gave oral evidence and were cross-examined. In accordance with the orders of the tribunal, the respondent also filed and served an affidavit, sworn, on 5 March 2012, by Ms N Safar, the out-of-home care case manager with St Saviours. Ms Safar has been the boys' allocated case manager since 23 December 2010. Ms Safar also gave oral evidence at the adjourned hearing, on 26 March 2012, and was cross-examined. 21The applicant tendered into evidence an affidavit, sworn, by her, on 27 January 2012. The applicant had filed and served an affidavit sworn by her at an earlier date. Her evidence in that affidavit was incorporated into her later affidavit that she tendered into evidence. The applicant also gave oral evidence and was cross-examined at the adjourned hearing on 26 March 2012. 22The respondent also tendered into evidence the expert report of Ms Boland, dated 28 November 2011. Ms Boland also gave oral evidence at the hearing and was cross-examined. 23The only other evidence before the Tribunal was an affidavit sworn by the Guardian ad Litem for child B (sworn on 29 September 2011) and a report (dated 29 February 2012) of Ms Lucia Vardanega, a clinical psychologist, who prepared a report on the applicant's parenting capacity. This report was obtained on the instructions of the applicant's solicitor after the hearing on 13 February 2012, when the tribunal raised concerns about not having any evidence before it as to the applicant's current capacity to parent the boys. Ms Vardanega's report was filed and served on 21 March 2012. She was not required for cross-examination. Nor did she give oral evidence. 24It is convenient to first set out a history of events, as evidenced in the material before the tribunal, relevant to the applicant's application for review.

a. Placement of the boys with the applicant and her husband 25The respondent placed child A into the day-to-day care of the applicant and her husband in February 2001. He was 12 months old at that time. 26The respondent placed child B into the day-to-day care of the applicant and her husband in November 2002. He was 18 months of age at that time. At the time they were placed into care, the boys had an older sister, who was also in care. She is now an adult and the boys' younger sister is in the care of the older sister. 27At no time did the respondent allocate a caseworker to manage the placement of the boys during the time they were in the day-to-day care of the applicant and her husband. Nor was a caseworker allocated after the applicant's husband became ill, or after he died, on 10 August 2010. 28At all times the boys knew that the applicant and her husband were their foster carers and not their natural or adoptive parents, but the boys called the applicant and her husband 'mum' and 'dad'. The boys always had ongoing contact visits with their mother and sisters. 29Over time, both boys were found to have behavioural issues, including abandonment issues. These issues were first identified in child A, in 2007 and in child B, in 2009. The boys attended the school, which was next door to their home (a property that was rented by the applicant and her husband).

b. the death of the applicant's husband 30In October 2009, the applicant's husband was diagnosed with lung cancer. The applicant informed the respondent of this in November 2009 and requested assistance from the respondent for the boys to attend a holiday camp during the summer holidays. The respondent made the necessary arrangements and the boys attended a 5-day camp in January 2010. 31The boys' behaviour became more and more difficult, so in March 2010, the applicant took the boys to see a psychologist, Dr Steve Walker, and a paediatrician, Dr Richard Dunstan. Dr Dunstan recommended child B be prescribed ritalin. The applicant said she wanted to undertake some research before child B was prescribed this medication. 32By July 2010, the health of the applicant's husband had deteriorated substantially. There was an incident where he threw a broom at child B. The respondent was made aware of this incident and a caseworker came to discuss the incident with the applicant. The applicant explained to the caseworker that her husband's cancer treatment was affecting him adversely and she again requested assistance with the boys. The respondent arranged for the boys to attend a respite camp during the holidays. 33Around 27 July 2010, the boys' birth father died from a drug overdose. The boys had very limited contact with their birth father. The last contact had been in June 2005. Ms C contacted the applicant to inform her of the death of the boys' birth father. At the time Ms C was not aware of the funeral arrangements. The applicant did not tell the boys that their birth father had died. There appears to have been some breakdown in communication as to whether the applicant was asked to inform the boys of the death. 34On 2 August 2010, Dr Dunstan prescribed ritalin for child B and recommended that child A take zoloft for anxiety. 35On 3 August 2010, the respondent was informed that the funeral of the boys' birth father would be held that day. Ms C contacted the applicant and told her she would be attending the boys' school and would inform them of the death of their birth father and take them to his funeral if they wanted to go. Child A said he wanted to attend, but child B said he did not want to attend. As requested, the applicant came and picked up child B from school. She told Ms C that child A had been 'out of control' that evening and requested that he be placed into respite care for the evening. Ms C said she did not believe respite was appropriate for that evening but said it would be arranged at a later time. The applicant gave Ms C the prescriptions Dr Dunstan had prescribed for the boys as it was medication for which the applicant needed the respondent's approval before she could have the prescription filled. 36Ms C and a caseworker, together with the headmaster of the boys' school and the boys' teacher, took child A to the funeral. 37A week later, on 10 August 2010, the applicant's husband died. 38The funeral of the applicant's husband was held on 16 August 2010. Ms C decided she would attend the funeral. She attended together with another caseworker. 39On 19 August 2010, 3 days after her husband's funeral, the applicant contacted the respondent seeking further assistance with the boys, as child A's behaviour was again 'out of control'. The respondent arranged for the boys to be taken to stay with their older sister for the weekend. Subsequently, it was decided that the boys would remain with their sister for the rest of the week. The respondent caseworker also raised concerns it had about child A sitting away from child B during the funeral of the applicant's husband. A meeting to discuss these concerns with the applicant was arranged for 25 August 2010. At this meeting the applicant explained that child A did not wish to sit with his brother - he wanted to be with his teacher. It was agreed that the boys would return home to the applicant and that they would have monthly respite at their sister's home. The respondent also agreed to arrange counselling, medication and assessment of the boy's behaviour issues. 40During September 2010, there were several incidents where child A's behaviour was out of control. One occurred while Dr Walker was attending the applicant's home for an appointment with child A. Another occurred the following day when the boys were being taken to their sister's home for weekend respite. After these incidents, Dr Walker contacted the respondent caseworker to inform her of his involvement with the boys. He recommended the boys be supported by a paediatrician and that respite and family support be provided to the applicant and the boys. At the request of the respondent, appointments were made for the boys to again see Dr Dunstan. The appointments were made so that the relevant caseworker could be in attendance. No caseworker attended, but after making contact with the respondent's office, another caseworker did attend. Dr Dunstan recommended that child A be prescribed zoloft and that child B be prescribed ritalin. 41A meeting, scheduled for 13 October 2010, between the applicant and the caseworker was cancelled by the caseworker. The purpose of the meeting was to discuss the boys. Five days later, on 18 October 2010 the applicant took child A to hospital as he was complaining of chest pains. He was assessed and the hospital advised that child A was suffering from anxiety. The applicant's support person informed the respondent. However, no follow up occurred.

c. 21 October 2010 incident (the critical incident) 42On the morning of 21 October 2010, the respondent received an incident report from an unnamed caller, who had been walking past the applicant's home that morning when he/she was taking his/her children to school. The incident report, prepared by an officer of the respondent, states: '... [the] caller stated that there was a very large woman standing inside the house at the door. The caller stated that she was yelling at the child "go to school"... The caller stated that the woman had then pushed the screen door open with all her force. The caller stated that the screen door opened out towards the brick wall of the home. The caller stated that the child was slammed against the wall, squashed between the door and the wall. The caller stated the woman did this (pushed the door against the child) a further 3-4 times whilst stating "go to school". The caller stated that the boys started crying more - the caller is unsure if this was because he was hurt or just upset at what had happened. The caller stated that he was surprised that the child was not knocked out given the force the woman used. Help Line asked the caller if the child hit his head or anything on the brick wall. The caller stated that it all happened so fast that he/she is not sure whether the screen door did hit the child. The caller stated that the child's eyes and cheek looked red however the caller is unsure whether this is because he was crying or because he was hit in the head. The caller stated that the child ran around to the back of the house after this incident happened and the woman just stood at the front door. The caller stated that he/she spoke to the school about the situation ... Help Line asked the caller if he/she has ever noticed anything else of concern when walking past this house. The caller stated 'no'. 43A teacher from the boys' school made a call to the respondent that day. The respondent's record of that call states: '... [the] foster mother phoned the school stating she has problems getting [child B] to attend school, [deleted] a teacher went over to [child B's] home to try and get him to go to school and when he arrived [child B] had locked himself in the car and was crying. The teacher talked to [child B] and he stated that [the applicant] had pushed a door in the home deliberately into him about 3 times. It was observed [deleted] that the child has a bleeding lip and swelling to left side of his face. The child is currently at school and after applying ice the child does not appear to require medical attention. [deleted] has spoken to [child B] who states that he has been fighting with the foster mother since last night and he was 'pushing her buttons'. [child B] states that foster mother has been trying to stop himself and [child A] fighting and both have been defiant. [deleted] that [child B] is not fearful of returning to foster carer after school and is aware of CS report and has expressed concerns that CS may remove him from [the applicants] care. [deleted] however has concerns as both children are difficult to manage and foster carer is currently highly vulnerable due to recent death of her partner and it is suggested that urgent respite care is needed to give the foster carer opportunity to grieve without having to deal with the children's behavioural issues.' 44On the instructions of Ms C, two caseworkers went to the school to investigate what had happened. Again, on the instructions of Ms C, the caseworkers took both boys to the local police station. The school teacher who had been to the applicant's home that morning also accompanied the boys and the caseworkers. The police conducted an electronically recorded statement with child B at 4.45 pm that afternoon. A copy of the transcript of that record of interview is attached to the statement of Mr M. In that record of interview, child B said that he and his brother began fighting and swearing at each other that morning. He said that the applicant dragged him by the right arm and dragged him outside and closed the door behind him. He said there was a 'little tiny hole in the flyscreen' and that he was trying to make it bigger so that he could reach the door handle of the big door. He said he wanted to get back inside. He said that the applicant came out and shouted at him to go away from the flyscreen and that she was calling his teacher. He said he was against the brick wall and the applicant banged the flyscreen against him 'roughly about three' times. In response to a question about whether it hurt he said 'not much'. In regard to a 'cut' on his lip he said that he had a cold sore there. He also said that he was crying because he had been thrown outside and that was all. In response to a question as to whether he was scared of the applicant he said 'NO'. He went on to say 'no, I wasn't scared. I was just, I was just g'ng' to um, I was just g'ng to thrown the fly, I was just g'ng to try and bang the flyscreen on her, then flung open like that. I really ... , um, yeh.' At the end of the interview he again said that he was not scared and he acknowledged that the applicant was cranky at him because of his behaviour that morning. He said that the applicant had never done such a thing previously. In response to a question about whether she had hit him before, he said that maybe when he was tiny and when she said 'get off that'. He also said that he did not think that she had ever done anything previously that he thought was unreasonable. He said he was a bit scared after what happened and when pressed about what he was scared of he said 'Oh, like um, people from the school and DoCS are, anybody, like anybody I knew. I didn't know what was, what I was thinking.' When asked whether he had any worries and whether he had plenty of stuff at home like clothes and toys he responded 'yep, thousands.' 45Ms C determined that the boys were at risk of harm if they were to return into the applicant's care that evening and arrangements were made for the boys to be placed in alternative emergency care. The evidence is that the boys wanted to return home and they continued to do so for many weeks thereafter.

d. Events after 21 October 2010 46As she was required to do, Ms C reported the incident, of 21 October, to the Allegations Against Employees Unit (AAE Unit). The Unit investigated the allegation. From the information before the Tribunal it would appear that the investigation was not completed for another 12 months. 47On 23 October 2010, the police attended the applicant's home and placed her under arrest for an alleged assault on child B. The applicant accompanied the police to the local police station where she voluntarily participated in a record of interview. That record of interview commenced at 6.00 pm that afternoon. During the course of that interview the applicant's explanation of what happened was as follows: 'He didn't want to get ready for school and, beforehand, him and his brother wanted to take a remote car to school. The, I mean it's been documented by DoCS and paediatrician and child psychologist they're violent towards each other. They started fist fightin' in the house over batteries and things. Told [child A] to get to school. He went at 8.00, 8.35. [Child B] was still in the lounge room. Just wouldn't get dressed or go to school. Started swearing. I said, It's time to go. I had to go out as well. He had his socks and uniform on. Took his shoes and his bag and put on the bench by the front door and said, just finish getting dressed out there and go to school. Close the flyscreen door he put his hand in the middle of it, like, where I showed you and started trying to pull the flyscreen out. Then got a shoe that's by the front door and started bashing into the handle. I said, just go to school please. Opened the wooden door, said, if you don't go to school, 'cause I called [names of two teachers] before, 'cause they've had problems when my husband first died, and I said, I'll just get [name of school teacher] to walk up and bring you down to school. So just started swearing and, I'm not g'ing, like, all that kind of stuff. Put his hand back in flyscreen and went to pull it down. As he did that I opened the door. As I did that he pushed the door back and got my arm between the frame and flyscreen. And I just pushed it back again. I think he was by the wall, like, the front door and I think his fingers were in the actual flyscreen. And I just pulled it closed, locked it, and that's when I rang the school to tell [name of the teacher] to come and pick him up. And then he ran around the side of the house ...' 48When questioned further as to whether she had slammed the flyscreen door against child B, the applicant said that she did not remember having done so and denied she would do such a thing in any event. She explained that the last couple of months had been turmoil since the death of husband and the boys' birth father. She said their behaviour just wasn't like them and that's why she had been asking for help. 49No charges were laid against the applicant on this day or any other day. However, at the conclusion of her interview with police, the applicant was served with an interim Apprehended Domestic Violence Order (IAVO). It is the evidence of the applicant that on the following day the Court amended the IAVO so that she could have contact with the boys, but was prohibited from assaulting, molesting, threatening or otherwise interfering with child B, or engaging in conduct that intimidated child B. The applicant said the police officer had informed her that the respondent caseworker would probably be in attendance when the matter was next in Court. No one from the respondent attended the Court on that day or on any subsequent day. Police withdrew their application for a final AVO on 14 December 2010 and the IAVO was dismissed. As explained below, by this date the respondent had placed the boys into a new permanent placement. 50It was the evidence of Ms C that, by 25 October 2010 (i.e., 4 days after the incident), she had decided that the boys would not, at any stage, be returned to the applicant's care and both boys were informed of this. On 29 October 2010, Ms C telephoned the applicant to update her on the situation. She did not inform the applicant of her decision about the boys' future placement but she did tell her where the boys were placed at that time. The applicant reiterated that she wanted the boys to be returned to her care. Ms C told the applicant that as she was the subject of an allegation being investigated by the AAE Unit she would not be asking her any questions about what had happened on 21 October 2010. It was the evidence of the applicant that she was not contacted or asked about what had happened until 12 months later, on 31 October 2011, when she received a letter from the Assistant Director of the Reportable Conduct Unit of the respondent, asking her to respond to 2 allegations in regard to the incident that occurred on 21 October 2010. The allegations were that, on this day, she had slammed a screen door into the face of child B a number of times and that she dragged child B by his t-shirt and placed him outside. The applicant responded on 14 November 2011 denying both allegations. On 16 December 2011, the Assistant Director of the Reportable Conduct Unit wrote to the applicant and informed her that the respondent had finalised its investigation about the allegations and found that the allegation about having slammed the fly screen door was substantiated, but the other allegation was not substantiated. 51On 10 December 2010, the boys were placed into the care of their current carers. That placement, as we have explained, is a placement managed by St Saviours. In her oral evidence Ms C acknowledged the placement was made as a permanent placement for the boys.

e. The original decision 52The evidence is that 4 days after the boys were placed in their new placement (i.e. 14 December 2010), Ms C prepared a letter, addressed to the applicant, which set out her decision that the boys would be removed from her care. The letter identified the following as the reasons for her decision: a report was received on 21 October 2010 stating that [child B] had been harmed by you earlier that day. you were subsequently subject of an Apprehended Violence Order naming both [child A and child B] as Protected Persons. The AVO included condition 7 which stipulated no form of contact was acceptable except through your legal representative. The AVO has since been withdrawn therefore contact between the children and yourself is currently being assessed as to the tyope (sic) of contact, frequency and level of support and supervision required. further to investigating the issues raised in that report, concerns became known to Community Services regarding your capacity to continue to provide for the day to day care needs of the children, due to your emotional and physical health, were they to be restored to your care, therefore it is not intended that the children return to reside in your care. 53The letter informed the applicant that she had a right to seek internal review of the decision under section 53 of the ADT Act. The letter, however, made no mention of the applicant's right to seek an external review and a stay of the decision by the tribunal. 54While the letter was prepared on or about 14 December 2010, the evidence is that Ms C did not finalise that letter until late in December 2010. Furthermore, Ms C did not finalise the letter until Mr M, who had returned from a short period of leave at the end of December 2011, asked her whether the letter had been sent. The applicant received the letter on or about 10 January 2011.

f. the internal review decision 55On 25 January 2011, the applicant made a written application for internal review of the decision of Ms C. Two days later, the applicant, together with her support person, met with Mr M for the purpose of discussing her internal review application. 56On 18 February 2011, the applicant unsuccessfully attempted to contact Mr M about her internal review application. It was her evidence that she had left a number of messages for Mr M to contact her. 57On or about 7 March 2011, Mr M prepared a letter, addressed to the applicant, informing her of his determination on internal review. The applicant received that letter on 29 March 2011. In his letter to the applicant, Mr M said: 'I wish to advise ... I have undertaken a review of the material contained in Community Services records and the information you provided. I have also reviewed the Departments practice guidelines on Authorised Carers Supervision and support, the Responding to Allegations of Carer Misconduct. The Internal Reviewer has affirmed the decision. The reason for findings are: The report received by Community Services on 21st of October 2010 outlined an assault which occurred to [child B]. Whilst this did not lead to criminal charges, Community Service staff have assessed this to be significant enough to require that [child B and child A] be no longer in your care. Community Service Practice Guidelines confirms that it is appropriate for such information to be used when informing decisions about placement appropriateness and the safety and well being of children in Care. ...' 58The letter concluded by the respondent informing the applicant of her right to seek review, by the tribunal, of the internal review decision and the period within which she was to seek review.

g. contact with the applicant following the boys' removal 59The applicant's contact with the boys from the date of their removal and up to the date of hearing has been minimal and always fully supervised. The lack of contact was not due to the applicant not wishing to see the boys more often. It was her evidence that she made many requests to the respondent for this to occur. 60On 22 December 2011, the respondent made its first approach to the applicant about a contact visit with the boys. The respondent caseworker suggested a contact visit for the following day. However, during the afternoon that day the applicant was contacted by the caseworker again to say that the visit would not be occurring due to child A having had an anxiety attack. 61The applicant had her first contact visit with child B on 12 January 2011. It was a one-hour visit at the offices of the respondent. In March 2011, the applicant received a contact schedule from the respondent, which set out a schedule of 8 contact visits between 11 April 2011 and 21 December 2012. A contact room at the respondent's offices had been booked for the 4 scheduled visits in 2011. All contact visits were to be supervised and the applicant was prohibited from whispering any information to the boys. 62The first visit took place on 13 April 2011, as scheduled. Both boys attended. The applicant then had contact with the boys on 11 July 2011 (as scheduled), 9 August 2011 and 26 September 2011 (as scheduled). After the September contact visit, the applicant requested more frequent contact visits as the boys requested to see her more often. The applicant also requested that ultimately, contact visits be unsupervised. An increase in contact visits was also supported by the Guardian ad Litem for each of the boys after Ms Boland's psychological report had been filed and served. In that report, Ms Boland recommended that there be ongoing contact between the boys and the applicant. Further contact visits were organised for 10 and 19 December 2011 and 23 January 2012. We note that these contact visits occurred after the tribunal made orders, at a directions hearing, in accordance with orders sought by the legal representative of the Guardian ad Litem of child A and supported by the applicant's legal representative and the legal representative of the other Guardian ad Litem. The respondent subsequently successfully had these orders set aside by the Appeal Panel on the grounds that the tribunal had no jurisdiction to make such orders. 63The contact visits after 26 September 2011 continued to be supervised, but were arranged to take place at a venue other than the offices of the respondent. 64It was the evidence of Ms Safar, the St Saviours caseworker for the boys, that contact visits were always arranged through Mr M.

Is the decision to remove the boys from the applicant's care the correct and preferred decision?

65As we have already mentioned, the role of the tribunal is to review the decision of Mr M having regard to all the material before it and the applicable objects and principles as set out in sections 8, 9 and 10 of the Care Act. In our view, having regard to these objects and principles, there are a number of factors that need to be taken into account in determining whether the decision of Mr M is the correct and preferred decision as at today's date. These are (a) the history of the boys' placement with the applicant, (b) the critical incident and the respondent's guidelines in regard to such incidents, (c) events that have followed the critical incident, (d) the wishes expressed by the boys, (e) the applicant's ability to care for the boys and (f) the opinions of the experts Ms Boland and Ms Lucia Vardanega. 66During the course of the hearing, we stressed that it was not the role of the tribunal to review the decision of the respondent or St Saviours to place the boys with their current carers. However, the general circumstances of the boys' current placement is nevertheless a relevant factor to be considered in the context of the boys' wishes and what has happened since they were removed from the care of the applicant. 67History of the boys' placement with the applicant As we have outlined above, the evidence is that the boys' placement with the applicant and her husband was a very stable placement in which the boys were nurtured, felt secure and loved. It would appear that they were also welcomed and loved by the extended family of the applicant and her husband. That it was a loving home is demonstrated in the evidence of Ms Boland, the clinical psychologist who interviewed the boys in September 2011. This changed with the illness and death of the applicant's husband in August 2010 and the death of the boys' birth father. At the same time the boys' misbehaviour was escalating. Anxiety and other psychological issues appear to have been a contributing factor to this. 68In her report Ms Boland said that child A had told her that he was very happy in his new placement and was proud of the improvement he had made since being there. He said the worst thing that had happened to him was when his 'dad' got sick and died. He told Ms Boland he did not want to upset his 'mum' and that he missed his cousins, 'nan' and other extended members of the applicant's family. He said he would like the applicant to meet with and have contact with his current carers so that she could continue to be involved in his life. Ms Boland said that child B had explained to her that he missed the applicant quite a lot and that sometimes he felt like running away and going to be with her but also felt that he was really happy and wanted to stay where he was. He also told Ms Boland that he had bad anger issues but this had changed and he attributed the change to being on medication. He said that he most wished that his 'dad' would come back and that the old family was back together again and no one would die. In her oral evidence Ms Boland said that her interview with the boys, in particular child B, was the saddest one she had ever had. 69During cross-examination, Ms Boland said that the boys had been fortunate to have continuity and love with the applicant and her husband for so many years. This she noted as being of great importance as these were the boys' formative years. 70The critical incident and the respondent's guidelines in regard to such incidents - There is no dispute about the critical incident having occurred, what is disputed is the severity of it and what action should have been taken in regard to it. 71As pointed out by Mr M, the respondent has published, for its staff, a practice guideline for dealing with allegations of carer misconduct. Attached to Mr M's affidavit was a copy of the guidelines. Where there has been an allegation of carer misconduct, depending on the severity of the alleged misconduct, the guidelines provide for an investigation, a 'Secondary Assessment Stage 1' and a 'Secondary Assessment Stage 2' process to examine and deal with such conduct. Where the alleged misconduct is of a kind that falls within the description of 'reportable conduct', as defined in Attachment A to the guidelines (includes 'any assault' but not 'physical force that, in all the circumstances, is trivial or negligible'), the allegation is investigated by the AAE Unit or the local Community Service Centre of the respondent. An allegation of serious sexual or physical abuse, serious neglect, exposure to domestic violence and serious psychological harm is investigated by the AAE Unit and the remaining 'reportable conduct' allegations are investigated by the relevant local Community Service Centre: see Attachment B/Table 2 to the guidelines. 72In the 'Introduction' to the guideline it is stated that when the respondent receives an allegation of carer misconduct, the respondent has 'a duty of care to ensure the safety, welfare and wellbeing of the child or young person.' The guideline states that this means, at a minimum, a Secondary Assessment Stage 1 should be conducted when a report of alleged misconduct occurs. The introduction also states: '[When] conducting an assessment, investigation and protective action, the paramount consideration must be for the safety welfare and well being of the child and young person. However, a balance must also be achieved between this and ensuring that the carer receives procedural fairness during the process. These guidelines address both issues.' 73The guidelines also contain information about what protective action (if any) should be taken prior to, during, or following an investigation. That action is dependent on the assessed risk of harm having regard to the nature of the allegations. Attachment C/Table 3 to the guidelines is a schedule of appropriate action that is to be taken prior to and following an investigation the alleged carer misconduct involves a 'high risk of harm.' In this Table, removal of a child from the carer is recommended where the allegation involves serious sexual abuse or sexual misconduct, serious physical abuse (i.e. serious/life threatening injury and shaking to infant) and serious neglect. Where the alleged carer misconduct amounts to 'moderate physical abuse' (defined to mean 'observable injury eg bruise, welt' and 'physical force with an implement'), the recommended action is the placement of conditions on the carer's authorisation and an agreement that the carer take protective action. 74Ms C's decision not to return the boys to the care of the applicant on the night of the incident is not a matter for review by the tribunal. Events leading up to that day were complex and also very emotional for the applicant and the boys. On the evidence, during this time, it would appear that the respondent's resources were also stretched with many other competing demands. However, its officers did respond immediately upon being advised about the critical incident. On all accounts that response was appropriate in the circumstances. 75What is of concern is what occurred after this. As we have mentioned, a formal decision about the removal of the boys from the applicant's care was not made until mid December 2010. Yet in her oral evidence Ms C said she had already made that decision 4 days after the critical incident. Whether she made an objective assessment of all the circumstances (including what child B had said to police that day) and had regard to the guidelines is not clear. Ms C said she had consulted the respondent's employed psychologist about the boys' being removed from the applicant's care. However, there is no record of that having occurred or what advice was given. It would appear that, despite of the boys having been with the applicant for many years without incident, no independent professional assessment of their attachment to the applicant was made until September 2011. This was 9 months after the critical incident and made in the course of these proceedings. Instead, comments made by the boys about the applicant were construed negatively without any proper basis. 76In regard to her formal decision about the removal of the boys from the applicant's care, the legal representative of the Guardian ad Litem for child A put to Ms C that this decision was made after the respondent had successfully secured a new long term placement for the boys. While Ms C denied this to be the case, in our view, on the evidence it is difficult to conclude otherwise, especially if she had already decided, within 4 days of the critical incident, that the boys would not be returning to the applicant's care. If this is correct, the applicant should have been informed and also informed of her review rights, including a right to seek external review and a stay by the tribunal. In making these remarks we are not saying that had the applicant been so informed and made the relevant application to the tribunal, events would have unfolded differently. We accept that the critical incident on 21 October 2010 and the events leading up to that incident warranted intervention by the respondent. What we find difficult to understand is why the applicant was not informed about decisions involving her ongoing care of the boys at the time they were in fact made. 77Nevertheless we are not critical of Ms C, who we found to be a truthful witness. We are concerned however, that there may be a lack of understanding by caseworkers of the respondent of their obligation to inform a person, adversely affected by a decision they make, which is a reviewable decision by the tribunal, of that person's external review rights, including, where relevant, a stay of the decision. 78We also found Mr A to be a truthful witness, but as we have indicated, we found that he had little, if any understanding of what was required of him in conducting an internal review of the decision to remove the boys from the applicant's care. Leaving aside the delay in making his determination, on his own evidence, the decision Mr A reviewed appears to have been the decision of Ms C to not return the boys to the applicant's care on the night of 21 October 2010 and he reviewed it on the basis of the information that was before Ms C at that time. That is, he failed to consider the matter afresh, having regard to all the relevant information at the time he was undertaking his review, as he was required to do under the internal review provisions of section 53 of the ADT Act. This included objectively assessing the evidence in regard to the critical incident and all the other material relating to the applicant's care of the boys against the relevant criteria in the guidelines on carer misconduct and any other relevant guidelines of the respondent. 79In regard to the critical incident of 21 October 2012, in our view, on the basis of the material before us, at its highest, the incident, an isolated one, was no more than an incident of 'moderate physical abuse'. Furthermore, it arose at a time when there was considerable loss and stress within that home. On this basis, under the respondent's guidelines, it is difficult to see how the alleged misconduct, on its own, warranted the permanent removal of the boys from the applicant's care. That is, the applicant's misconduct could not be seen as being sufficiently serious to fall within those categories in the guidelines, which recommended removal action. There were, of course, other factors, which needed to be taken into account, including the long period for which the boys had been in the applicant's care and their attachment to her. Instead, it would appear that when the boys were not returned to the applicant's care after the critical incident, the focus of the respondent was to find a new permanent placement for the boys, and once it was found, to ensure that it was not disrupted. We understand that where a critical incident occurs, decisions need to be made quickly. Investigations or assessments of those incidents also need to be made quickly, primarily in the best interest of the child concerned and also in the interest of the carer. It is difficult to understand why the AAE Unit took over 12 months to complete its investigation, when police had interviewed the child and the applicant within days of the incident having occurred. Delays of this nature are hardly consistent with the objects and principles of the Care Act. 80We are also concerned about the subjective nature of records that have been made by officers of the respondent in regard to the boys' attachment to the applicant. We did not hear from these officers, but were concerned as to whether these officers were qualified to express opinions of this nature. 81Again, it is not for the tribunal to determine whether, Mr M, had he approached his internal review determination in the manner required and within the time required, he would have made a different decision. We merely note that had he approached the task, as he was required to do, there may have been little opportunity for the applicant to feel a sense of injustice in decisions that were made. More importantly, the level of anxiety for the boys, resulting from these proceedings would have been considerably lessened. 82Events following the critical incident. As we have already noted, on 10 December 2010, the boys were placed in a new permanent placement. Prior to this they were in temporary placements, two of which broke down. 83The boys' current carers, a husband and wife, live in a semi rural setting. They have 4 children of their own, who are home taught by their mother. In addition to the boys who are the subject of this application, the carers have 3 other foster children. On being placed into this new placement the boys have been taking their medication as prescribed by their doctors and they have had additional support. Although there have been a number of incidents in this placement with child A, Ms Safar, who has been the allocated caseworker for the boys, meets with the boys weekly after school. It was her evidence that they boys have settled well into their new placement and they have expressed a desire to remain there. She also acknowledged that the boys still speak fondly of the applicant and still refer to her as 'mum'. However, these proceedings have been very stressful for them. 84 As we have explained there has been limited contact between the boys and the applicant. What contact there has been has been supervised. This includes telephone contact, which has been agreed to on a monthly basis. Why there has been such limited contact and why the respondent has taken such an adversarial approach to it is difficult to understand. 85The applicant on the other hand has sought more contact with the boys. We note that the applicant continues to reside in the same rented premises and that she has undertaken extra parenting courses. She has obtained her driver's licence so that she is more mobile and able to better meet the needs of the boys. 86The wishes expressed by the boys In her report, Ms Boland, said that child A told her he was fearful of being removed from his current placement and that if he was moved he would 'run away'. He made this comment in the context of the placements the respondent had put him in after the critical incident and before his current placement. He described these places as being 'bad places'. As we have pointed out, Ms Boland spoke to the boys 11 months after they were removed from the applicant's care. 87Ms Boland nevertheless formed the view that the boys were still grieving the loss of their relationship with the applicant, and associated this with the loss of their foster father and former family life generally. She expressed the opinion that for the boys the loss of the applicant's husband and the 'concomitant loss of their "family" meant that they responded to their grief and loss with extreme acting out behaviours.' She nevertheless found that the boys loved the applicant and that historically the applicant had a positive attachment relationship with the boys. 88In her affidavit, Ms Safar, explained that after the tribunal hearing was adjourned on 14 February 2012, she received a report from the boys' current carers to say that, during the previous evening, child A was upset and said that he would hang himself if he was going to go back to the applicant. After a conversation with Mr M and Ms C, Ms Safar arranged for child A to be assed by St Saviours' intern psychologist, on 21 February 2012. In the report of the intern psychologist, Ms K Ayers, it is noted that child A said he did not wish to go back to the applicant and that he wanted to stay with his current carers. She also noted that in testing child A for risk of self harm, he had demonstrated a simplistic thought process on the matter of suicide rather than an 'intended means to solve a problem'. 89Ms Ayers also assessed child B on the same day. In her report she noted that child B also expressed a wish to remain with his current carers. Both boys said they wanted to be in a family where there was a 'dad'. 90The applicant's ability to care for the boys In the absence of being able to see the applicant with the boys, Ms Vardanega, the applicant's appointed psychologist, was unable to make an assessment of her ability to care for the boys. She noted however, that it had been almost 18 months since the boys had been in her care and that since the report of Ms Boland there appeared to have been a shift in the boys' attitude towards the applicant. That shift she noted appeared to arise as a result of these proceedings not having been finalised. Ms Vardanega was critical of any discussions with the boys during the course of these proceedings, which either undermined their current placement or their feelings towards the applicant. 91We share the uncertainty expressed by Ms Vardanega about the applicant's ability to care for the boys on a day-to-day basis given the time they have been in their new placement and their expressed desire to remain there. We nevertheless commend her for the steps she has taken to be in a position to do so. These will assist her in maintaining contact with the boys, should they wish to do so. 92The opinions of the experts We have placed greatest weight on the opinions expressed by Ms Boland as she had the opportunity to independently assess the boys, the applicant, the new carers and the boys with their new carers and the applicant. In regard to the best interests of the boys she said the specific and significant psychological, learning, social and behavioural needs had to be addressed so as to have the best out come for the boys. Of paramount concern in regard to the boys' day-to-day care was that they were provided with 'an environment of stability and predictability, with well organised and child-responsive care.' She said the boys had experienced significant grief and loss and they needed the opportunity to recover from these experiences in a supportive and predictable environment. She concluded that 'given the multiple losses and the children's specific special needs, any change in their care arrangements would place them at serious and significant risk.' She also concluded that both boys undoubtedly loved the applicant and that she loved them. As we have noted, Ms Boland formed the view that the boys were still grieving the loss of their relationship with the applicant and associated this with the loss of their foster father and former family life generally. However, the discontinuity and disruption to this relationship has meant that the children's best interest would be best served if they remained in their current placement with appropriate and ongoing support, with an ongoing relationship with the applicant. 93While it is not a matter the tribunal can resolve, we share the concerns Ms Vardanega expressed about the boys having expressed such a different view about the applicant when assessed by Ms Ayers. However, we note that the boys continued to speak very fondly of their time with the applicant while her husband was still alive. His loss and the loss of that family remains a significant part of the boys' lives.

Conclusions and orders 94In her oral evidence, the applicant was realistic about the period of time the boys have been with their new carers. Nevertheless she sought to have the boys return to her care, and if this was not possible, she wants to remain an important person in their lives. She said she was happy to abide by the decision of the tribunal and if the decision was to affirm the decision of the respondent, she would like to sit down with the current carers, St Saviours and the respondent, and endeavour to work out resumed regular contact visits with the boys, including overnight visits with her. In our view, on the evidence, there is no reason for this not to occur, and the boys should be encouraged to do so. The fact that the applicant and her late husband were the primary carers of the boys for such a long time, without any support from the respondent, and the effort made by the applicant to address any issues arising from the tragic circumstances following the death of her husband, leave no reason to believe that the boys would be at risk if unsupervised contact visits were to resume. 95The critical incident of October 2010 occurred in circumstances not long after the applicant's husband had died and when she was seeking assistance from the respondent in dealing with the escalating behaviours of the boys. We do not condone what occurred but it may have been avoided with proper assistance and support. That support and assistance we note was given after the boys were removed. The boys have now expressed their wishes to remain in their current placement. As we have noted, it is the evidence of the experts, given the events since the boys were removed from the care of the applicant, that it is not in the interest of their wellbeing that they be moved from their current placement. The experts do however, support ongoing contact between the applicant and the boys. 96The legal representatives of the Guardian ad Litem for each boy also submitted that the decision of the respondent should be affirmed. That submission was also made on the basis of the boys having been (a) removed from the applicant's care more than 12 months ago, (b) in their new permanent placement for more than 12 months and (c) given the opportunity to express their view that they wish to remain in their current placement and do not wish to be returned to the applicant's care. These submissions and the opinions of the experts were not made in the context of any criticism of the time the boys were in the applicant's care and that of her late husband, whom the boys continue to call 'mum' and 'dad'. 97We are concerned about the litigious nature in which the respondent has approached these proceedings. This is particularly so in regard to the question of the applicant's ongoing contact with the boys from the time they were removed. Instead of nurturing this contact, the respondent has arguably driven a wedge between them. How this assists in their wellbeing, level of trust and self-confidence was not explained. As we have indicated, a decision about ongoing contact is not an issue over which the tribunal has jurisdiction. Yet the tribunal has jurisdiction to grant a stay. Such orders we note can be made subject to conditions, which could include contact visits with persons other than the applicant. In this application, had contact been nurtured, there may have been an early resolution to this application. The applicant did not strike us as being an unreasonable, vindictive or bitter person following what has happened. 98In conclusion, having regard to all the evidence that is before us today, the submissions of the parties and the opinions of the experts, we find that the respondent's decision is the correct and preferred decision. Accordingly we order:

1. The decision of the respondent is affirmed with the following recommendations: (a) the boys the subject of this application (the boys) be informed of the Tribunal's decision and that:

• the decision has been made on a basis, which included the wishes they have recently expressed about remaining where they are;
• the Tribunal has not been critical of their 'mum' or of the care that she and their 'dad' provided to them and hope they are able to maintain a positive relationship with their 'mum', (b) more frequent unsupervised contact visits between the boys and the applicant be commenced immediately. These arrangements should be facilitated and encouraged by and with the current carers, St Saviours and the respondent, (c) Mr M have no further involvement in any decisions involving the boys, and (d) ongoing psychological support be provided to the boys, the current carers and the applicant to address the boys' needs and how the impact of their substantial losses can be mitigated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2012