BHR and BHS v Biripi Aboriginal Children's Services

Background

1. In December 2013, the applicants requested the respondent to arrange respite care for the child while they travelled on holiday, with their birth children, from 30 December 2013 to 8 January 2014. As we have mentioned, on their returned from holiday the applicants asked the respondent's caseworker, Ms Vicki Lambert, to make arrangements to pick up the child from respite. Ms Lambert advised the applicants that allegations had been made against them and the child would remain in respite until the allegations had been investigated.
2. On 9 January 2014, the applicants received a letter from Ms Barbara Caine (Ms Caine), Acting Foster Care Coordinator of the respondent, setting out the allegations of risk of significant harm towards the child that had been made against them. These were: 13/08/2013 [BHS] reported to Caseworker VL that she and [BHR] felt like hitting [the child] at times [the child] has been placed outside, in his bedroom or in the bathroom when he is naughty or defiant and unable to reach the doors to get in and out due to his disabilities. Allegations of this occurring at day time and night time [BHR] was observed to have pinched [the child] by the ear to sit down whilst visiting a person at John Hunter Hospital and this caused [the child] to cry.
3. As requested in the letter, the applicants attended the offices of the respondent, on 13 January 2013, and were interviewed by Ms Cain in regard to the allegations. The applicants thought the interview had gone well and that they would be able to pick up the child and continue with their camping holiday. However, Ms Caine telephoned the applicants and 'apologised' that they would not be able to collect the child as 'Val Woods had decided that [the child] was to stay in respite while "further issues" were investigated.' Ms Valerie Wood (Ms Wood) is the Manager of the respondent.
4. On 21 January 2014, the applicants received another letter from Ms Cain concerning allegations of risk of significant harm towards the child that had been made against them. The letter repeated the abovementioned allegations and the following allegations were added: Medical neglect in regards to services offered to support [the child] and carers such as ADHC, Physiotherapy and Psychological Counselling Not following through with directions and support provided by [the respondent] and other professional services Not taking [the child] on family holidays from 30 December 2013 to 9 January 2014 due to his behaviours and carer advice on "not wanting to spoil another family holiday."
5. This letter also requested that the applicants attend an interview, at the offices of the respondent, on 23 January 2014, in regard to the allegations. The applicants attended the interview, as requested.
6. On 24 February 2014, the applicants wrote to Ms Wood, seeking her decision and reasons for decision in regard to the allegations.
7. Ms Wood ultimately responded in a letter dated 19 May 2014. In that letter, Ms Wood said the respondent had completed the investigation into the 'allegation of abuse' (i.e. the above mentioned six allegations) that had been made against the applicants. Ms Wood went on to say the following in regard to the allegations: On the balance of probabilities it was found the allegation of the following issues: 13/08/2013 [BHS] reported to Caseworker VL that she and [BHR] felt like hitting [the child] at times - this matter was not reportable conduct however causes for concern as a number of supportive action and strategies was developed. [the child] has been placed outside, in his bedroom or in the bathroom when he is naughty or defiant and unable to reach the doors to get in and out due to his disabilities. Allegations of this occurring at day time and night time - not reportable conduct however use of this method requires Director and Manager approval to use as a restrictive practise. [BHR] was observed to have pinched [the child] by the ear to sit down whilst visiting a person at John Hunter Hospital and this caused [the child] to cry - this matter was substantiated. Medical neglect in regards to services offered to support [the child] and carers such as ADHC, Physiotherapy and Psychological Counselling - this was not reportable conduct however was seen to be a breach in the carers code of conduct by not following direction of [the respondent's] staff. Not following through with directions and support provided by [the respondent] and other professional services - this is not reportable conduct however is seen as to be breaching the carer's code of conduct by not following direction of [the respondent's] staff. Not taking [the child] on family holidays from 30 December 2013 to 9 January 2014 due to his behaviours and carer advice on "not wanting to spoil another family holiday"; not reportable conduct however causes for concern due to impact of emotional and psychological harm. This decision was made upon careful consideration of all the information that was gathered, and under the guidelines of the NSW Ombudsman legislation. The following recommendations have been made: [the child] not to return [to] your care. Placement of [the child] in alternative Biripi Aboriginal Children's Service Authorised Care arrangement for a period of time until restoration to natural family. … …

Proceedings before the Tribunal

1. On 21 May 2014, the applicants filed this application seeking review of the decision of Ms Wood, as reflected in the abovementioned letter (i.e. the child would not be returned to the applicants care for the reasons set out in the letter). The applicants also made an application seeking a stay of the decision the subject of review.
2. The applicants' application for a stay was set down for hearing on 29 May 2014. On 28 May 2014, Ms Wood sent, by facsimile, a letter acknowledging receipt of the applicants' review applicant and application for a stay. She also requested that she appear by telephone on the following day when these matters were listed before the Tribunal.
3. On 29 May 2014, when calling Ms Wood on the telephone numbers she had provided, the Tribunal was advised that Ms Wood was not available. As she was unavailable, the Tribunal adjourned the matter to 3 June 2014.
4. On this adjourned date, the Tribunal made a number of orders, including an order under subsection 55(4)(b) of the Administrative Decision Review Act 1997, that it was necessary to deal with the applicant's application for review notwithstanding an application for an internal review had not been made. An order was also made refusing the applicants' application for a stay.
5. Consent orders were also made for the filing and serving of evidence. This included an order that: (a) on or before 13 June 2014, the respondent file and serve its section 58 documents (i.e. section 58 of the Administrative Decisions Review Act 1997) the evidence on which it relies and (b) on or before 20 June the respondent to file and serve its expert report (i.e. report on attachment). On the same day, by consent, the matter was set down for hearing on 4 July 2014.
6. At the request of the applicants' agent, the matter was relisted for directions on 26 June 2014, as the respondent had not filed any material in compliance with the orders that had been made. At this directions hearing, an order was made that the respondent file and serve its evidence by close of business on 30 June 2014 and the matter was set down for further directions, on 2 July 2014.
7. On 2 July 2014, by consent, the Tribunal granted leave to each party to be legally represented at the hearing.
8. At the conclusion of the hearing on 4 July 2014, we made an order that the respondent, in consultation with the applicants, appoint an independent appropriately qualified psychologist or social worker to assess and report of the child's attachments to the applicants and the current carers and where his needs and development would be best supported. We also made an order that the respondent file and serve a copy of its policies relating to removal/transition of a child from the care of an authorised carer.
9. As we have noted, at the conclusion of the hearing on 22 September 2014, we reserved our decision and made orders that the applicant file and serve a chronology. We also made an order that the respondent file and serve a copy of its policy in regard to the removal of a child, from the day to day care of an authorised carer, as no such document had been filed or served.

The Tribunal's jurisdiction

1. Subsection 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (Community Services Act) provides that a person may apply to the Tribunal for administrative review, under the Administrative Decision Review Act 1997, of a decision under specified provisions, including section 245 of the Care Act. Subsection 245(1) of the Care Act prescribes which decisions, made under that Act, are administratively reviewable for the purpose of subsection 28(1)(a) of the Community Services Act. This includes a 'decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person' (see subsection 245(1)(c) of the Care Act).
2. Subsection 245(2) of the Care Act defines the term 'relevant decision-maker' to mean 'the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.' There is no dispute that the respondent is a relevant-decision maker for the purpose of subsection 245(1)(c) of the Care Act.
3. Having jurisdiction to review the decision of the respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: see subsection 63(1) of the Administrative Decisions Review Act 1997.
4. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].

Relevant legislation

1. Chapter 8 of the Care Act makes provision for out-of-home care and the authorisation of carers to provide such care.
2. Section 9 of the Care Act sets out how the provisions of that Act and the regulations made pursuant to that Act (e.g. the Children and Young Person (Care and Protection) Regulation 2012) are to be administered. This includes the manner in which the provisions relating to out-of-home care and the authorisation of carers are to be administered (see section 7 of the Care Act).
3. As at the date of hearing, section 9 was in the following terms: 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.
4. Clause 6 and 7 of Schedule 1 of the Child Protection Legislation Amendment Act 2014 inserted a new subsection 9(2)(g) and new section 10A into the Care Act. Subsection 9(2)(g) that the 'permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person' in out-of-home care. Section 10A sets out what those principles are.
5. In our view, even if these principles had applied, they are not relevant to the issues in this application as the decision the subject of review is not a decision about permanent placement as this had been made when the child was placed with the applicants in 2010. What is in issue is a decision to remove a child from that permanent placement.
6. Section 137 of the Care Act defines what is meant by the term 'authorised carer'. There is no dispute that the applicants are authorised carers. They were authorised as such by the Department and their authorisation remains valid. This includes the principle of a 'designated agency' and 'a person who, in accordance with the regulations, is authorised as a carer.' The respondent is a 'designated agency' (see section 139 of the Care Act) and Division 2 of Part 6 of the Children and Young Person (Care and Protection) Regulation 2012 (the Regulation) contains the provision relating to the authorisation of carers.
7. The conditions of authorisation are set out in clause 34 of the Children and Young Person (Care and Protection) Regulation 2012 (the Regulation), which include a requirement that the authorised carer 'must comply with the code of conduct for authorised carers.' The 'code of conduct' is defined to mean the code of conduct for authorised carers approved by the Minister and published on the respondent's website.
8. Clause 41 of the Regulation makes provision for the management of behaviour of children and young persons. That clause is in the following terms: 41 Management of behaviour of children and young persons (1) An authorised carer, in correcting and managing the behaviour of a child or young person in out-of-home care: (a) must not use: (i) any physical coercion or physical punishment (including corporal punishment), or (ii) any punishment that takes the form of immobilisation, force-feeding or depriving of food, or (iii) any punishment that is intended to humiliate or frighten a child or young person, and (b) must, in any event, use only behaviour management practices approved by the designated agency. (2) An authorised carer who finds that the approved behaviour management practices are not sufficiently effective to correct or manage the behaviour of a child or young person is to notify that fact as soon as practicable to the designated agency. (3) On receiving a notification under subclause (2), the designated agency, after assessing the situation, is to determine if the problem should be addressed: (a) by providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person, or (b) by changing the placement arrangements.
9. The parties did not tender into evidence a copy of the code of conduct. However, we note, in regard to behaviour management, the code of conduct provides as follows: Authorised carers are expected to: General Follow the lawful policies, procedures and guidelines brought to your attention by the designated agency … … Care Environment …. … Provide a care environment where the child or young person is not exposed to physical, sexual, psychological or verbal abuse, ill treatment or neglect. … … Identity, emotional and social development Support the child or young person to feel safe and develop a sense of security … … Wellbeing, health and education Follow the behaviour management policy of the designated agency. This will include ways to encourage positive behaviour in children and young people and appropriate actions to respond to challenging behaviours Only use behaviour management practices as described in the behaviour management policy or approved by the designated agency. The use of any physical punishment or coercion, immobilisation, force-feeding, deprivation of food or any punishment intended to humiliate or frighten a child or young person is not permitted Report any incident where physical restraint has been used following the protocol for critical incident/event reporting within the designated agency. …
10. The code of conduct also describes what authorised carers can expect. This includes being respected for their opinion and being consulted on decisions about the care of the child or young person in their care and support and training on ways to encourage positive behaviour in children and how to respond appropriately to challenging behaviours.

The evidence

1. In support of their claim the applicants tendered into evidence the following material: 1. Affidavit of BHR sworn on 9 June 2014. 2. Affidavit of BHS sworn 9 June 2014. 3. Affidavit of witness C, a volunteer authorised carer and a member of the local carer's support group, sworn on 3 July 2014. 4. Affidavit of witness D, the maternal grandmother of the child, sworn on 9 June 2014. 5. Copy of case notes of Dwayne Paulson a case worker employed by the respondent concerning access between the applicants and the child on 24 September 2014. 6. A copy of the final orders made by the Children's Court on 16 August 2010 allocating parental responsibility to the Minister for the child until he obtained the age of 18 years. Attached to that order was a copy of the care plan prepared by the Department under section 78 of the Care Act. As we have noted, that plan proposed that the child remain in the care of the applicants. It was noted that the applicants were 'authorised Community services Aboriginal foster carers'
2. In support of its claim, the respondent tendered into evidence the following material: 1. An affidavit of Valerie Wood sworn on 30 June 2014. 2. An affidavit of Vicki Lambert, case worker employed by the respondent, sworn on 30 June 2014. 3. Copy of the respondent's notes of a reportable conduct interview conducted at the premises of the respondent on 13 January 2014. Present at the interview were the applicants, witness C together with two officers from the respondent, Barbara Caine and Felicity Paulson. 4. The respondent's notes of the interview with the applicants on 23 January 2014 concerning the alleged reportable conduct. Present at that meeting were the applicants, witness C, witness D, Barbara Caine and James Shepherd of the department. 5. Copy of handwritten notes of trigger incidences involving the child at his school on 26 November, 25 November, 2 December and 4 December 2013. The notes were prepared by the child's teacher and identified the trigger which caused the behaviour in issue, the intervention that was used, whether the intervention worked or did not work together with comments by the teacher. 6. A report of David J Sheehan, clinical psychologist dated 2 September 2014, in regard to the child's attachment to his previous carers and current carers together with an assessment of where the child's needs would be best supported.
3. Both applicants gave oral evidence at the hearing, on 4 July 2014, and were cross examined by the solicitor for the respondent. The respondent's witness, Ms Wood, also gave oral evidence on this day and was cross-examined by the applicant's solicitor. Ms Lambert gave evidence, on 11 August, and was cross-examined by the solicitor for the applicant. Mr Sheehan gave oral evidence at the hearing on 22 September, and was cross-examined on that day.
4. Mr Hagan, solicitor of the applicants, also filed and served written submissions, which included an application for costs. As we have noted, we have not dealt with this issue and have made orders in regard thereto.

The allegations

1. As we have noted, the respondent made its decision on the basis of its findings in regard to the six allegations listed in its letter of 19 May 2014. We have briefly dealt with these below.
2. Before we deal with these allegations, it is necessary to briefly explain the nature of the permanent medical injuries the child suffers as a result his non-accidental injuries inflicted on him while he was in his mother's care. These include hemiparesis, hemiplegic cerebral palsy, otitis media, effusion and symptomatic seizures. He requires ongoing medical care and is required to wear a splint, on one leg, day and night and splints on one of his arm at night. The child's behaviour patterns are also at times challenging and on this basis he was to be given fortnightly respite, on the condition a respite carer was available.

Allegation 1 and 2

1. In her statement, Ms Lambert said that, in or about August 2013, she had received a phone call from a female person who told her that she was a neighbour of the applicants and that she was concerned about the child. Ms Lambert said that the neighbour, who did not wish to leave her name, had told her that she had seen the child outside the house and heard him yelling, 'Let me in'. Ms Lambert said she encouraged the neighbour to report her concerns, but no report was received. Nor did Ms Lambert make a note of the call.
2. It is the evidence of Ms Lambert that, on 13 and 15 August 2013, during a home visit, BHS told her that she and BHR felt like hitting the child at times and that they placed the child outside, in his bedroom, or in the bathroom when he is naughty and defiant. Ms Lambert made a file note of these matters, which were attached to her affidavit. The file note also noted a number of other matters about the child's behaviour.
3. BHS did not deny she made comments along the lines recorded by Ms Lambert. In her affidavit, she explained the circumstances in which they were made. She said, during the week in question she was looking after the children on her own as BHR was working in another town. She said she had always considered Ms Lambert to be more than just a case worker - she considered her to be a good friend and often confided in her about how she felt and difficulties she was experiencing with the child's behaviour. She said she had never hit the child or her own children. We understand her evidence to be that she made the comment out of frustration and not with any intent to hit the child.
4. BHS also said she recollected feeling frustrated because she had asked on several occasions for a referral to a behavioural psychologist, as recommended by the doctors at Westmead Children's Hospital and the respondent had not done anything to make such arrangements. She said the respondent did eventually organise this for her, BHR and the child and Ms Lambert had also attended the initial two sessions.
5. It was the evidence of BHS that at no time during these sessions or during a home session did Ms Lambert raise any concerns about the child in her care. The first time she became aware of this was five months later, when she and BHR received the respondent's first letter of allegations.
6. In regard to the second allegation, BHS said that with the respondent's knowledge and agreement, she and BHR were using the Triple P - Positive Parenting Program strategies they had been taught. These strategies included placing a child outside, in his/her bedroom or in the bathroom when he/she was naughty. She explained the program encouraged the use of a 'quiet room' for 'time out' and in their home the 'quite room' was the front veranda, the bathroom or the child's bedroom. She said they used this strategy for all their children, not just the child. She also noted the child was at all times able to open the door - he was never locked in.
7. We note the Triple P - Positive Parenting Program was also supported by the Department. In our view, there is no evidence that the applicants inappropriately applied the 'time out' strategy from time to time.
8. During the interview with the applicants, on 13 January 2014, it was noted that the child had been attending the psychologist since late August and since that time his behaviour had become easier to manage and the applicants were going to continue to see the psychologist with the child, when they moved to their new home at a town further north.

Allegation 3

1. The third allegation is alleged to have occurred on 16 October 2013, when the applicants and their four children (including the child) visited Ms Lambert while she was in hospital.
2. In her affidavit, Ms Lambert said she had exchanged SMS messages with BHS, but she did not specifically ask her and the family to come and visit her.
3. She said that during their visit, the children were moving around the room quickly and were noisy. She said BHR told the children: 'Be quiet - you are in a hospital'. She said they all tried to distract the children by doing things like blowing up the nurse's gloves. She said the child was standing on a chair when she saw BHR reach out and take hold of the child's ear and pull it downwards. She said that while BHR was doing this he said: 'Sit' - the child looked down and she saw his mouth was downturned - she said she saw him wipe a tear from his cheek.
4. In their respective affidavits, the applicants acknowledged that the children were noisy and that the child was climbing on a plastic chair. They said he was asked to get off the chair, but laughed and continued to climb over it. BHS said that BHR did hold the child's ear but he did not pinch or pull it. She said the child got off the chair and sat on BHR's lap - he was not crying - he was laughing. BHS said that when they left Ms Lambert she thanked them for visiting her and the children all hugged her goodbye. BHS sent Ms Lambert a SMS message after they left apologising for the behaviour of the children. Ms Lambert responded by saying 'that is ok.'
5. Ms Lambert did not make a file note of this incident. She said she raised it with another case worker when she returned to work on 18 November 2014, but did not consider the incident to be of sufficient seriousness to report it to police, or make a formal report.
6. In her oral evidence Ms Lambert said she subsequently told BHS that BHR could not pull the child's ear.
7. Whether BHR did or did not pull the child's ear is not altogether clear. That the child was misbehaving and BHR sought to address this seems to be agreed. Even if it is accepted that BHR pulled the child's ear, it was not of sufficient seriousness or concern for Ms Lambert to make a report of the incident at the time it occurred, or even when she returned to work in late November 2013.

Allegation 4

1. In regard to the allegation of medical neglect, the respondent asserts the applicants failed to follow the directions of the respondent in regard services it offered to support the child and carers. These services were physiotherapy, psychological counselling and therapy assistance at the Department's Ageing, Disability and Home Care Services (ADHC).
2. In support of these allegations, the respondent relied on reports Ms Lambert had sought, in mid-January 2014, after the decision had been made not to return the child to the applicants' care.
3. It was the evidence of Ms Lambert that, in January 2013, not long after the respondent had taken over the management of the placement, she had arranged for the child to see a particular psychologist. She said, on informing BHR of this he said he knew him and did not think he was a nice person.
4. As noted above, Ms Lambert also arranged for the applicants to see a psychologist some-time in August 2013. In a report of the psychologist, sent to Ms Lambert, on 24 January 2014, the psychologist noted that the applicants had not completed the forms she had given them. When the forms were given to the applicants is not stated and we note the service was in any event effectively ended due to the decision of the respondent not to return him to the applicants' care.
5. In regard to the therapy assistance that had been sought with the ADHC, a report of that organisation, dated 21 January 2014, that noted several attempts had been made to contact BHS, in late 2012 and early 2013, for her to complete a 'My Plan' form so that assistance could be arranged. The report indicates that Ms Lambert assisted BHS in completing the form and the necessary arrangements were made in early 2013.
6. In our view, the material relied on by the respondent does not evidence a breach of the code of conduct.

Allegation 5

1. We assume, allegation 5 (applicant's did not follow through with directions and support provided by the respondent and other professional services) is based on the same matters identified above under the heading 'allegation 4'. For the same reasons we find that there is no evidence to support a breach of the code of conduct in regard to this allegation.

Allegation 6

1. The final allegation concerns the applicants' 'failure' to take the child on family holidays from 30 December 2013 to 9 January 2014 'due to his behaviours and carer advice on "not wanting to spoil another family holiday"'.
2. In her affidavit, Ms Lambert said that, on or about 17 December 2013, BHS said to her words to the effect that they were at their limits with the child's behaviour. She went on to say that, on about 18 December, she received a text message from BHS asking whether there had been any luck in finding a respite carer for the child from 30 December to 9 January 2014. Ms Lambert said she replied and said she had not found a respite carer, but she had obtained a travel letter authorising them to take the child on holiday. She said she received a text message in reply from BHS to say that they didn't really want to take the child if they could avoid it. Ms Lambert said she would keep trying.
3. Ms Lambert said, later that day, she had a conversation with BHR in which he said he wanted her to get them some respite. Ms Lambert said that she responded by saying she couldn't find anyone but that she had the travel authority letter ready for them to take. She alleges that BHR then said words to the effect: 'We don't want to take him. I'd like to just go on holiday with the family. I don't want him ruining [another] family holiday - we have taken him on other holidays before and he's been really naughty - his reckless screams in the caravans and is just not an enjoyable time because we just feel like we are running after [the child] all the time.'
4. Ms Lambert said she responded by saying words to the effect: 'I understand where your (sic) coming from, but we don't have a suitable carer. I'll do my best.'
5. As we have noted, a respite carer was found and the applicants went on holiday.
6. In his affidavit, BHR said that during November and early December 2013 he and BHS had told all four children that they were going to Queensland on holidays after Christmas and this was a privilege and if they did not behave in the weeks leading up to their departure they would not be able to go. He said the child told them that they had to take him and misbehaved more than usual. As a consequence, two weeks before they were due to leave, BHS contacted Ms Lambert to ask her to arrange respite for the child. BHR said that they strongly believed they had done what was in the child's best interest by showing him that they meant what they said about what would happen if he misbehaved. He said they all missed him and their children kept talking about him. He said they had promised the child when they left that if he behaved during respite he would be joining them on their regular January camping trip to Southwest Rocks.
7. In her oral evidence, BHS explained how they measured good and bad behaviour of all four children before they left. She said it was in accordance with what she had learnt. She and BHR also elaborated on the child's behaviour that led to their request for respite.

The decision to remove the child from the applicants' care

1. In her affidavit, Ms Wood said she had made the decision not to return the child to the applicants' care on the basis of: 1. Concerns raised when the child was in the care of the Department regarding the applicants commitment to attending the child's medical needs. 2. The report of Ms Lambert that the applicants felt like hitting the child. 3. The matters raised in the letter from the Department dated 22 January 2014. 4. The report of BHR using physical discipline with the child. 5. The applicants' desire to not take the child on holidays with the family.
2. Ms Wood was unable to point to any document which evidenced concerns that had been raised, by the Department about the applicants' care of the child during the time the placement was being managed by them. A copy of the Department's 22 January 2014 letter was attached to Ms Wood's affidavit. That letter, does no more than report what officers of the respondent appear to have told the Department. That is, the allegations referred to in that letter were those made by the respondent.
3. In her oral evidence, Ms Wood sought to explain that her decision to not return the child to the applicants' care was a decision to transition the child from the applicants' care into a new kinship Aboriginal permanent placement. This, she suggested, was not a decision to remove the child from the applicants' care.
4. Ms Wood left us with the impression that regardless of any attachment the child had to the applicants and their three children, she, in effect, determined, not long after 30 December 2013 that the child should be removed from the applicants' care to his current carers and she acted accordingly.
5. We accept that there were a number of issues that needed to be addressed concerning the care of the child. However, on the material before us, we do not believe the issues or allegations were such that the child was at risk of harm, let alone significant risk of harm, to justify a decision not to return him into the care of the applicants when they returned from holidays. A return did not mean that the allegations and issues should not have been addressed.
6. Ms Wood asserted that her decision to remove the child from the applicants' care was made in accordance with current policies. No policies were referred to in her evidence and when ordered to provide the policy the respondent filed and served an August 2012 draft 'Case Worker Policy and Procedure Review'. This is a policy relating to the placement procedures for a child in out-of-home care. It makes no mention of how and in what circumstances a decision concerning the removal of a child from a permanent placement to be made and in what circumstances it is to be made.
7. In her oral evidence Ms Lambert said she has never questioned BHS's love of the child. She also acknowledged that the child's behaviour was problematic at home, at pre-school and elsewhere. She said that at no time did she believe the child was at serious risk of harm while in the applicants' care.
8. The child had been in the applicants' care for four years, the majority of his life. He called BHR 'dad' and BHS 'mum'.
9. In our view, the allegations relied on by the respondent were not of sufficient seriousness individually, or collectively to remove the child from the applicants' care in early January 2014.
10. In regard to the applicants' respite request in December 2013, it is evident from the material the applicants had reached a crisis point in dealing with the challenging behaviours of the child. Ms Lambert was also clearly concerned about the applicants and the child. It was evident during her oral evidence that she is very attached to the child and has at all times done what she could to assist him and the applicants. However, it does not appear that she has been provided with any relevant training, guidelines or skills to deal with the issues that arose, let alone provide appropriate guidance to the carers in regard to the child's challenging behaviour. This is not a criticism of Ms Lambert, who we found to be frank and forthright.
11. It is understandable that the applicants may have wished to have a short holiday without the child. And if so requested, the respondent should have endeavoured to facilitate this if possible. It would need to be done in a positive rather than negative way.
12. Regrettably, this is not how the applicants approached the issue. Instead, participation in the family holiday was made conditional on good behaviour and bad behaviour. Bad behaviour meant the child would not be able to go on holiday. This in our view was not an appropriate means of dealing with behavioural issues, let alone a wish to have a holiday without the child. As a consequence of their approach the child's behaviour escalated as did the applicants' levels of stress. It is not clear to what extent Ms Lambert or Ms Wood were aware of the circumstances leading to the applicants' request for respite, but they were certainly aware of concerns the applicants were having with the child's behaviour.
13. In our view, it was at this point that the relationship between the applicants and the respondent broke down, resulting in the decision made by Ms Wood. Both parties, in our view, contributed. The applicants through stress and the respondent in failing to have appropriate policies and procedures in place.
14. As at the end of September 2014, when the matter was last before us, more than nine months had lapsed since the child was removed from the applicants' care. During this time the child has been placed in a kinship placement with his maternal uncle, his partner and their children, which include siblings of the child. An assessment of the new carers was undertaken and completed before Ms Wood gave the applicants formal notice of her decision to remove the child from the applicants' care.
15. The removal of the child rather than the decision about placement of the child into the care of the new carers is the subject of review in this application. However, with the consent of the parties we made orders for an independent psychological expert assessment of the child and his attachment to the applicants and the current carers as well as an assessment of where the child's needs would be best supported.
16. That assessment was made by Mr Sheehan. His assessment was based on his observations, at his offices, on 25 July and 27 August 2014. In attendance at the first observation were the current carers and the child and in the second observation, the child and the applicants were in attendance. In his report, Mr Sheehan gave a summary of what he observed on these dates. His conclusions can be summarised as follows: 1. The child is a young boy who sustained heinous injuries against him leading to his removal from his family of origin. 2. Due to his injuries and subsequent removal the child is in need of compassionate understanding, a secure family environment and the ability to maintain his attachment to family of origin, and culture. 3. The child's previous and current carers and families clearly hold a great deal of affection for the child and he appeared to enjoy interactions with previous and current carers and their families. 4. There are distinct differences in the parenting styles between the child's past and current carers. The previous carers were observed to interact with 'high energy and physical rough housing followed by periods of lulls'. The child interacted by joining in with the 'rough housing' and being highly excitable. The child's current carers were observed to maintain a calm and consistent environment with their interaction without the need to decrease the child's behaviour or energy. 5. The child had developed a positive attachment and sense of belonging to his current family placement. 6. The child showed no concerning insecure attachment behaviours or emotional concerns during the observations, yet he appeared to be easily influenced behaviourally by the nature of the interactions around him. 7. The child interchanged his use of the terms 'mum' and 'dad' with both old and new carers. He displayed no emotional upset on leaving his current carers or ending assessment with past carers.
17. Mr Sheehan noted the applicants' considerable family distress and understandable emotional grief following the child's 're-placement'. This grief he said should be acknowledged, but it was independent of the child's wellbeing and emotional needs and should not guide decisions.
18. Mr Sheehan said that, in his clinical opinion, the child's placement with his current carers had not produced any notable distress or concern to his attachment warranting another disruption to him. Rather the child appeared to have integrated with appropriate interactions and behaviour with his current carers and family. Mr Sheehan went on to say there was a greater risk to the child should he be once again separated from his siblings and removed from the positive attachment he has with his current carers.
19. Mr Sheehan recommended that it was in the child's best interests to continue residing with his current carers, with non-allocated contact between the child and his mother. Mr Sheehan also recommended a designated timeframe to review the child, his needs, attachment and ongoing progress and that support should be offered to the child's prior carers to assist their understandable emotion and grief and feeling of loss.
20. In his oral evidence Mr Sheehan said that he was aware that allegations had been made against the applicants, but he had little regard to them as he relies on his own observations. He said he did not diagnose any attachment disorder in the child and he agreed that this meant the child would have easily attached to the new carers.
21. Mr Sheehan also said that he believed there was a good bond between the child and both sets of carers.
22. For the reasons we have given, we agree with the solicitor for the applicants, that the respondent's removal of the child from the applicants' care in early January 2014 was not justified. However, there were clearly issues that needed to be addressed about the child's placement with the applicants and the respondent's management of the placement. We cannot say what would have eventuated with the placement had the respondent addressed these issues appropriately, without the child having been removed.
23. However, given the effluxion of time, in our view the evidence of Mr Sheehan is very persuasive, especially having regard to the guiding principles in section 9 of the Care Act. That is, given the child was removed some time ago and he appears to be well settled in his current placement, the decision to remove the child from the applicants' care is the correct and preferable decision at this time.
24. This does not mean that contact with the applicants and their birth children should cease. On the contrary, subject to the willingness of the applicants, the child should be given every opportunity to retain his attachment to them and their birth children. This will require the co-operation and understanding of all parties, including the current carers. And the respondent should make every effort to facilitate contact.
25. We also support the recommendation of Mr Sheehan in regard to a review of the child, his needs, attachment and ongoing progress in his current placement. That review should be conducted in the next few months, by an independent, appropriately qualified expert, who has had no involvement with the child, the applicants, his current carers or the respondent organisation. A copy of that review should also be provided to the relevant section of the Department.

Other matters

1. It is of considerable concern to us that the respondent does not have any policies or guidelines in regard to (a) behaviour management of young children, as prescribed in the code of conduct for carers children, and (b) circumstances in which a decision to remove a child from his/her permanent placement should be made.
2. Policies and guideline of this nature are critical so that carers know what is expected and the respondent can make decisions appropriate to the circumstances and in accordance with the principles set out in section 9 of the Care Act.
3. We are also concerned about the delays in informing carers of a decision to remove, or intending to remove a child from their day-to-day care. As we have noted, these decisions are reviewable by the Tribunal. Furthermore, carers have a right to seek external review and a stay of such decisions, before an internal review is requested (see section 55 of the Administrative Decisions Review Act 2102) and the designated agency making the decision is required to inform carers of their review rights, including the right to seek external review and a stay (see 55 of the Administrative Decisions Review Act 2102).
4. In the absence of these policies and guidelines we recommend the respondent, as a matter of urgency, develop policies and guidelines on the abovementioned matters and incorporate in their decisions a statement about external review rights.

Orders

1. For the reasons we have set out, we make the following orders:
2. The decision of the respondent to remove the child from the applicants' day-to-day care is affirmed.
3. Pursuant to subsection 32(2) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 the Tribunal recommends: 1. Subject to the willingness of the applicants, the respondent to take steps to facilitate unsupervised contact between the child and the applicants, with a view to the possibility of respite and holiday contact, 2. The respondent to make arrangements for the conduct of an independent review of the child, his needs, attachment and ongoing progress. The review should be undertaken in the next few months by an appropriately qualified expert, who has had no involvement with the child, the applicants, his current carers or the respondent organisation. A copy of that review should be provided to the relevant section of the Department of Family and Community Services. 3. The respondent develop, as a matter of urgency, policies and guidelines in regard to: 1. - behaviour management of young children, including challenging behaviours, as prescribed in the code of conduct for carers; and 2. - the circumstances warranting the removal of a child from his/her permanent placement.
4. In regard to the applicants' for costs we make the following directions:
5. On or before 4 March 2015 the applicant to file and serve a document setting out their costs.
6. On or before 16 March 2015, the respondent to file and serve any material in response to the applicants' applicant for costs.
7. On or before 23 March 2015, the applicant to file and serve any material in reply.
8. The applicants' application for costs to be determined on the papers. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 25 February 2015