Administrative Review - Children and Young People (Safety) Act 2017 - Children and young people in the Chief Executive 's custody or guardianship - Review of a decision of the Chief Executive or Delegate - Relocation of a child

Administrative Review - Children and Young People (Safety) Act 2017 - Review of a decision of the Chief Executive or Delegate - Preliminary applications - Validity of decision under review - Delegation

Administrative Review - Nature of decisions under review - Whether decision made within power - Delegation of power - Decision maker not delegated power to make decision - Whether decision must be set aside

Children and Young Persons (Safety) Act 2017 ss 84, 158

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37, 44

Mr K Tredrea with Ms A Jordan appeared for the applicant

Mr C Pager with Ms T Toubanakis, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(i)

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 44

1. In October 2023, an officer of the Department for Child Protection ("the Department" or "the respondent"), Ms Willson, made a decision to remove a child, L,[1] from the care of DLT ("the applicant").
2. At the outset, the Tribunal acknowledges that these proceedings are about the welfare and safety of a child, L. L is nine years old and has been in the applicant's care since she was five months old. She has no contact with her biological parents. The Tribunal proceeds on the basis that officers of the Department had received numerous, worrying reports about L's welfare including that she was being sexually abused by another child in the applicant's care, and that their focus has been to secure safety for L. The Tribunal also proceeds on the basis that the applicant felt that she was poorly supported by the Department and, in relation to the removal, was asked to make a Hobson's choice to give L up.
3. In March 2024, the applicant applied to the Tribunal, pursuant to s 158 of the Children and Young Persons (Safety) Act 2017 ("CYPS Act") and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 ("SACAT Act"), for a review of the decision.
4. In addition to challenging the merits of the decision, the applicant contended that the decision was not validly made and applied to have the issue of validity dealt with as a preliminary question.
5. The orders requested in the interlocutory application were for a declaration that the Department's decision on 24 October 2023 to remove L from the applicant's care, pursuant to s 84(1)(c) of the CYPS Act_,_ was "made without delegated power and is of no force or effect".
6. Secondly (or in the alternative), the applicant contended that the placement decision should be set aside and replaced with a decision of this Tribunal pursuant to s 37(1)(c)(i) of the SACAT Act.
7. Thirdly, that in the alternative, the matter be listed for hearing, and that the respondent pay the applicant's costs.
8. A hearing of the preliminary question was held on 6 May 2025. The decision-maker's evidence was taken. At the conclusion, I reserved my decision.
9. At the hearing, the applicant conceded that the Tribunal has no power to issue declaratory relief as requested, and the first of the orders sought was modified by agreement to refer to a finding that the decision-maker lacked the power to make the decision, rather than a declaration.
10. The parties filed written submissions.
11. The claim underpinning the application for these orders is that the decision-maker, Ms Willson, was not authorised to make the decision to remove L from the applicant's care. Section 84(1)(c) of the CYPS Act lists the Chief Executive's powers in relation to children and young people in the Chief Executive's custody or guardianship. It provides that:

84 - Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship > > (1) Subject to this Act, the Chief Executive may, in relation to a child or young person who is in the custody, or under the guardianship, of the Chief Executive, from time to time do 1 or more of the following:

(a) place the child or young person, or permit the child or young person to remain, in the care of a member of their family;

(b) place the child or young person in the care of any other suitable person;

(c) remove the child or young person from the care of a person referred to in a preceding paragraph;

...[2]

1. The parties agree the relevant delegation of decision-making power by the Chief Executive was that, in relation to s 84(1)(c), the manager of a child protection office had delegated authority to make a decision to remove a child or young person from the care of an approved carer, in respect of a child or young person under guardianship until 18 years of age subject to the following conditions:[3]
   1. Delegates who hold a position below the level of Director may only make a decision to remove a child or young person from a placement with an approved carer if satisfied that the removal is required to ensure the child or young person's immediate safety.
   2. Delegates cannot exercise the power to remove a child from the care of an approved carer without prior consultation with a Practice Leader (and Principal Aboriginal Consultant if the child is Aboriginal), unless the delay involved in consulting would prejudice the child's safety.
2. The parties agree that Ms Willson was an employee of the respondent who, at the time of the hearing, held the office of Acting Regional Director, but that her substantive position, and that at the time of the decision, was manager of the Woodville office of the Department of Child Protection. The position of manager is lower than a director-level position.
3. The parties also agree that Ms Willson purported to make a decision pursuant to s 84(1)(c) to remove L from the applicant's care.
4. The parties further agree that the scope of the decision that Ms Willson was authorised to make at the relevant time, was a decision to remove a child where the two conditions in the instrument of delegation were met.
5. The applicant contended that the documentary evidence filed with the Tribunal for the substantive review establishes that the first condition was not met when the decision was made.
6. The respondent contended, and the applicant does not dispute (for the purposes of this application at least), that the second condition was met. It was agreed that the consultation was only required with the Practice Leader, because L is not an Aboriginal child.
7. The issues to be determined therefore are:
   1. What is a removal?
   2. Who decided what, and when?
   3. On what basis was the decision made? Were the conditions precedent to the exercise of the power satisfied?
   4. If not, what is the consequence?

1. The word "remove" in its context within s 84(1)(c) connotes a decision as to the care of a child under the Chief Executive's guardianship with a carer, and the implementation of that decision.
2. However, it is not clear whether the term "removal" describes an action that has, as one of its ingredients, opposition from the carer. In other words, if the carer agrees that the child would benefit from not remaining with the carer, or if the carer does not wish to continue with the care arrangement, is what follows a "removal"?
3. It is not necessary for the purposes of this decision to resolve that question, however it is apparent that those involved in L's removal were conscious of the applicant's entitlement to participate in the decision-making process regarding L, which is enshrined in s 82(1) of the Act. It is sufficient to consider the events leading up to L's removal within that context.

1. The following evidence was received and considered by the Tribunal:
   1. A statement of reasons prepared by Ms Willson on 9 April 2024;
   2. Contemporaneous notes of meetings, and emails between Ms Willson and others, contained in the section 35 book of documents filed with the Tribunal by the Department;
   3. An affidavit affirmed by Ms Willson on 9 April 2025; and
   4. Oral evidence given by Ms Willson at the hearing on 6 May 2025.
2. Those sources do not provide a consistent account of an easily identifiable occasion of decision making.
3. It might reasonably be expected that the decision-maker's statement of reasons would enable the answers to who, when, what and why. In this case, the decision-maker's reasons were prepared approximately six months after the decision was made, and a month after the challenge to the decision was commenced.[4]
4. The statement of reasons was signed by Ms Willson. Relevantly, it said:[5]

1. In September 2023, the ongoing concerns were brought to the attention of the Practice Lead, Keerti Jauhal and Manager of the DCP Woodville Office, Rachel Willson. At that time, five further care concerns had been raised since the safety plan had been implemented in January 2023. A summary of concerns included inappropriate sibling sleeping arrangements, [DLT] requesting the school keep [TCD] way from L due to over affection, L presenting with a black eye, reports L presenting with urine soaked pyjamas, L becoming increasingly violent at school, L appearing overmedicated, L attending school with medication in her lunchbox, L wetting the bed, having nightmares and making disclosures of being hit in the privates by [DLT]. A decision was made for L to again be placed outside [DLT's] care pending further assessment of the escalating and ongoing concerns for her safety. L was placed with a family friend, [TZF], on 8 September 2023. 2. On 15 September 2023, departmental workers met with [DLT] to advise that L would be returning home with a new safety plan. The safety plan involved L attending respite care on weekends, an alarm to be installed on L's bedroom door to notify [DLT] of someone entering L's room, weekly home visits by DCP, a weekly visit to the school by DCP, a narrative to be provided to the children that DCP is safe and for [DLT] to undergo a Parenting Capacity Assessment. 3. On 17 October 2023 an interagency strategy discussion with CPS and SAPOL took place following further two care concerns which included disclosures of L being sexually harmed by her brothers. It was again determined to remove L from the placement so she could undergo a forensic medical interview. 4. On 18 October 2023 a consultation occurred with case management, Manager Rachel Willson, Practice Leader Keerti Jauhal, and Principal Clinical Psychologist Catherine Collins occurred where the safety of the child was discussed. Due to the concerns of immediate safety of L in the placement and the interagency view that a placement outside of [DLT's] care was required to ensure safety pending forensic assessment, it was agreed L would be removed from the placement. The Department were seeking an opportunity for L to be afforded a safe and therapeutic care environment whilst L's psychiatric and paediatric needs were reviewed by medical specialists at the Women's and Children's Health Network, and to allow the Department to undertake a parenting capacity assessment for [DLT] which would include the assessment of all children in placement. The Department were seeking to understand the full extent of the disclosures and the safety needs for all children based on the flood of concerns. 5. On 24 October 2023, Rachel Willson sent Acting Regional Director Melissa Wicks an anticipatory memorandum for the removal of L from her placement under section 84(1)(c), noting that it would be first attempted to reach an agreement with the carer to undertake an interim placement via consent. 6. On 24 October 2023, a meeting with case management, Lutheran Care and [DLT] took place whereby an alternative placement was discussed to enable a safe environment for L to participate in a forensic interview. Whilst [DLT] was unable to acknowledge any safety concerns for L, she reluctantly agreed to the placement. That afternoon, L was placed outside of [DLT's] care for an indefinite period.

5. The concerns that lead (sic) to the removal of L from [DLT's] care related to the risk to L's safety should she remain in [DLT's] care.
6. In summary the child protection concerns that led to the removal include:

a) L has been subject to ongoing harmful sexual behaviour from [TCD and YXM] in [DLT's] care. > > b) L disclosed [DLT] was aware of the harmful sexual behaviour however there is no evidence to support [DLT] acting to protect any of the children from ongoing harm. > > c) Concerns [DLT] coached and influenced L when she had made disclosures to the point where L would retract statements in fear of [DLT] finding out. > > d) Concerns L was being overmedicated in an attempt to manage her distressed behaviour. > > e) Concerns that [DLT] outsourced care of L, including use of extended before and after out of school hours care, in addition to having a regular babysitter who had L overnight on many occasions. [DLT] was also often uncontactable and had a pattern of sending the babysitter to collect and or care for the children in her absence. > > f) Concerns L's basic care needs have not been met in [DLT's] care, reflected through substantiations of neglect and emotional abuse, and [DLT's] breaches in standards of care in areas impacting on L's safety and wellbeing, in particular avoidance and disengagement from support services and the Department. > > g) [DLT] continued refusal to acknowledge or take any responsibility for harm caused to L in her care." > > (Emphasis added)

7. From the perspective of good administrative decision-making, the fact that the statement of reasons referred to the decision-maker in the third person, and frequently used the passive voice in respect of actions that might reasonably be expected to have been described by the author as their own, is unsatisfactory.
8. More importantly, the statement of reasons does not make reference to the conditioned authority under which the decision was made. It did not say that, on a particular date, the author formed the view that L's immediate removal from the applicant's care was required for L's safety. It did not say that, after consulting with the Practice Leader, the author made a decision to remove L from the applicant's care.
9. At paragraph 21, Ms Willson suggests that the reason for removal is for a forensic interview.
10. At paragraph 22, Ms Willson suggests that the removal is because of "the concerns" in relation to L's immediate safety (without specifying who held the concerns), and the "interagency view" that L needed to be outside of the placement pending forensic review.
11. At paragraph 23, Ms Willson states that she sent an anticipatory memorandum but does not say why she did so.
12. At paragraphs 23 and 24, Ms Willson states that she intended to seek the applicant's consent for an interim placement, to which the applicant "reluctantly agreed", and L was thereafter placed elsewhere on an indefinite basis.
13. The statement of reasons made no reference to the Department's guidelines for removal decisions,[6] to the decision being an urgent decision, or to any record of informing the regional director of the decision as soon as practicable after the decision was made.
14. At paragraph [30] of the statement of reasons Ms Willson said:

"It was considered that the removal was required to ensure the immediate safety of L."

15. In addition to being a statement that is not entirely consistent with the surrounding text, it is not clear whether, in the circumstances of the writing of the statement of reasons after the decision had been made, that statement is a conclusion reached after the event, or before, or by whom.
16. Finally, the statement of reasons is not easily reconcilable in important respects with the contemporaneous notes and emails that were created prior to the removal and that were also provided to the Tribunal as part of the decision-maker's records of decision, or to Ms Willson's oral evidence given at the hearing.
17. It was the applicant's complaint as to the ambiguity in the statement of reasons document, that led to the Department providing a further affidavit from Ms Willson. That affidavit became a further source of information as to the decision-making process.
18. In her affidavit affirmed on 9 April 2025, Ms Willson deposed that she made the decision to remove L from her placement pursuant to s 84(1)(c) on 24 October 2023.[7] She deposed that on 17 October 2023, it was determined at an interagency meeting that L should undergo a forensic medical assessment, and at a subsequent meeting that day, it was determined that L needed to be removed from her placement to undergo the forensic medical interview.[8]
19. At paragraph 12 of the affidavit, Ms Willson summarised the events of a meeting that occurred on 18 October 2023 between Ms Willson and various other departmental staff. Ms Willson deposed to a variety of reasons that it was thought that it would be beneficial for L to "come out" of the placement. They were:[9]

- The Department was "seeking an opportunity for L to be afforded a safe and therapeutic care environment whilst L's psychiatric and paediatric needs were reviewed by medical specialists at the Women's and Children's Health Network;

- to allow the Department to undertake a parenting capacity assessment for the applicant which would include the assessment of all children in placement; and

- "the concerns for L's immediate safety in the placement and the interagency view that a placement outside of the applicant's care was required to ensure safety pending forensic assessment were discussed."

1. At paragraph 13 of the affidavit, Ms Willson deposed:[10]

"After considering all of the above information and consultations, I formed the view that L needed to be removed from her placement to ensure her immediate safety. Due to the fact that the Applicant was travelling interstate, that alternate arrangement has [sic] been made for L's care over this period and considering L's needs I determined that it was appropriate to delay the removal until after the Applicant had returned". > > (Emphasis added)

2. That paragraph best encapsulates Ms Willson's contention at the hearing, namely that after consultation with the Practice Leader and on the basis of her assessment of what was required for L's immediate safety, she made a decision (which, although not stated in the paragraph, can be inferred from other material to have been made on 18 October 2023) and executed it on 24 October 2023.
3. The difficulty with the account given in the affidavit is that it does not sit comfortably with the set of documents that record contemporaneously the decision-making process, and Ms Willson's thoughts and actions. Nor is it consistent with the Statement of Reasons. Those documents are at least equally consistent with an account by which Ms Willson sought the approval of her regional director, Ms Wicks, for the removal, did not obtain that approval, and decided to remove L from the applicant's care without forming a view as to whether it was required for L's immediate safety.
4. It is important to observe that the evidence does not establish that Ms Willson made a conscious choice not to comply with the decision-making framework established in the Department. It is at least equally consistent with Ms Willson being uncertain as to how her decision-making power operated under the instrument of delegation.
5. At this point it is convenient to refer to the Department's practice manual which distinguishes between the process for "an urgent removal" and a "planned removal".[11] This distinction is not derived from the CYPS Act, and it was not in dispute that to the extent that these categories of decision have been created, they are sub-species of the decision to remove that is provided for in s 84(1)(c). For an "urgent removal" the policy states:[12]

In circumstances where the removal of the child or young person from their foster, kinship or SCO placement is necessary to ensure their immediate safety, the DCP case worker must alert their supervisor immediately ... For all placements with an approved carer, the supervisor and manager must consult with:

• A practice leader
• A principal Aboriginal Consultation if the child or young person is Aboriginal

The only exception to this requirement is where the delay involved in consulting would prejudice the child or young person's safety. > > (emphasis added)

1. Although the policy describes this as an urgent removal, the use of the words "necessary to ensure their immediate safety" indicate that the policy authors intended to align the urgent removal with the instrument of delegation which uses the same term to condition the exercise of the power of removal. If so, Ms Willson was authorised to undertake L's urgent removal after consultation with the Practice Leader.
2. In relation to a planned removal, the practice manual states:[13]

When there are serious concerns about the child or young person remaining in a family based placement in the long term or when a foster, kinship, SCO care or temporary placement is not meeting the child or young person's needs, it may be assessed that a planned removal from the placement is required. > > ... > > For all non-urgent removals, the regional director is responsible for making the decision to remove the child or young person from the placement. > > The regional director's decision should be sought by submitting a memo, including details of the case direction and the rationale for removing the child or young person from the placement. The regional director will review all of the available information and make the decision in a timely manner. The regional director's decision should be recorded on the Consult or Decision Record note. The removal should also be recorded by CARU on the Carer Approval page, and by the kinship care worker in the Kinship Care case in C3MS.

3. From this passage in the policy, it is reasonable to infer that "planned removal" is a synonym for "non-urgent" removal. If so, Ms Willson was not authorised to undertake L's planned removal. It would need to be made by Ms Wicks.
4. The applicant's primary contention was that the account given by Ms Willson is not supported by the documents that contemporaneously recorded the events as they occurred. Nor, submitted Mr Tredrea, did Ms Willson's oral evidence resolve the inconsistencies.
5. It is necessary to consider the events chronologically.

Wednesday 18 October 2023: the Woodville Office meeting

1. On Wednesday 18 October 2023, a Departmental officer, Nicolette Giannini, created a case note to record a meeting that occurred at 2 pm.[14] The case note, and the documents that are subsequently discussed below, were uploaded to the respondent's case-management system and compiled and submitted to the Tribunal when the proceedings were initiated.
2. Attending at the meeting on 18 October 2023 were Ms Collins, Departmental psychologist, Ms Willson, A/Manager of the Woodville Office, Ms Jauhal, A/Practice Leader, Ms Bejtic, Supervisor, Ms Giannini, Senior Practitioner, and Ms Blowes, Senior Case Manager.[15]
3. The subject of the meeting was recorded as "CONSULTATION w Manager, Practice Lead and DCP Psych services RE SECTION 84" in relation to L.
4. The case note had the following headings: Current Situation, Concerns For L, Assessment and Discussion, Decision and Actions, People Involved In The Decision, Categories.
5. Relevant to the reasoning process, the section headed "Concerns for L" contains the statement:[16]

CPS and SAPOL were in favour of a forensic interview, however, L would need to come out of the placement and be away from the carer so she cannot coach or influence L's responses to the interview. CPS are in favour of the forensic interview occurring through a planned transition of L coming out of the placement (if it is DCP's decision to remove L), rather than rushing this process in order for the interview to occur. CPS also expressed with L's ongoing disclosures abuse (physical and sexual), there are enough grounds for removal due to the accumulative harm being caused to L. The strategy discussion was left with DCP consulting regarding case direction and then updating CPS and SAPOL.

6. Under "Assessment and Discussion", was the following:

It was discussed and agreed L's safety is paramount. Due to the ongoing concerns with the placement, carer, and safety of L, the decision was agreed on that L is to be removed from placement. It was discussed that [DLT] will be given the option to agree to this, however, if not, DCP will therefore invoke section 84(1)(c). > > ... > > The timing and logistics of L coming out of the placement was discussed. [DLT] is travelling interstate on Friday 20/10/23 until Sunday 22/10/23 for her brothers funeral. The care arrangements of the children are as follows: > > - [DZX] and [YXM] are staying with their foster father, P > > - L is residing with babysitter, [TZF] > > - [TCD] is also residing with babysitter, [TZF], Thursday night, and then with his regular respite carers Friday to Sunday. > > DCP hold concerns with [TCD] and L residing in the same home overnight however there are no other respite options. Manager Rachel, A/Practice Lead Keerti and Supervisor Delida all agree [TCD] can reside with the babysitter for 1 night under a safety plan agreement with carer [DLT] and babysitter [TZF] to sign and adhere to. There follows a discussion as to various assessments and appointments that would be scheduled for L.

7. Under the heading "Decision and actions", were the words:[17]

L needs to come out of the home. If carer [DLT] is not agreeable, then DCP will invoke s 84(1)(c)(removing a child from a placement). > > DCP to speak with PSU and CARU to see if there are any suitable care options > > DCP to further consult regarding the timeframes and plan to remove L. This will be determined once an update from PSU and CARU is obtained. > > Create a safety plan for [TCD] and L to reside with [TZF] for one night. [TZF] and [DLT] to sign a safety plan stipulating supervision of the children (L and [TCD]). > > L to have an independent paediatric review OR psychiatrist review. Catherine recommended Dr MW or CAHMS for psychiatric review. CAMHS can also be an option as referral is current.

On what basis was the decision made? Was a decision made by Ms Wilson on 18 October 2023 to remove L from the applicant's care because it was required for L's immediate safety?

1. Ms Willson's oral evidence was that the meeting on 18 October 2023 was the occasion of her removal decision and the case note was the documentation of it.[18]
2. The difficulties with this account are that the record:

- makes no reference to her as an individual decision-maker;

- makes no reference to the need to remove L for L's immediate safety;

- gives a different reason for removal, being the need for a forensic interview to take place away from the carer's home;[19]

- refers to a plan to seek the carer's approval, which may be understood in the context of the policy as a plan for a non-urgent removal for which Ms Willson had no authority to make;

- by referring to a plan to seek the carer's approval, undermines the contention that the removal is required immediately to secure L's safety; and

- does not state a specific date for L to come out of care under either a planned or urgent removal.

1. Ms Willson's oral evidence that 18 October 2023 was the decision-making occasion was inconsistent with her affidavit of 9 April 2025, which specified the date of decision as 24 October 2023.
2. In any event, subsequent actions taken by Ms Willson and others between 18 October 2023 and 24 October 2023 are not easy to reconcile with the contention that a decision to remove L was made on 18 October 2023. The subsequent actions are at least equally consistent with no decision having been made to remove L until 24 October 2023.

Thursday 19 October 2023: preparing the memorandum for the regional director

1. On Thursday 19 October 2023, Ms Blowes started preparing a memorandum to the Acting Regional Director, Ms Wicks.[20] The memorandum was to go "through" Ms Willson as Manager of the Woodville office,[21] and was prepared at Ms Willson's request.[22]

Friday 20 October 2023: the preparation of the memorandum continued

1. On Friday afternoon, and continuing Monday 23 October 2023, there was a series of emails sent within the Woodville office, relating to the memorandum. These emails commenced at 4.51 pm on Friday afternoon and attached a draft memorandum for Ms Willson to consider.[23]

Monday 23 October 2023 in the morning: the memorandum requesting approval by the regional director is sent

1. In her affidavit of 9 April 2024, Ms Willson stated that she asked her staff to prepare the memorandum "out of an abundance of caution".[24]
2. The memorandum was dispatched by Ms Willson to Ms Wicks at 12.05 pm on Monday 23 October 2023.
3. The purpose of the memorandum was stated to be to "seek approval to terminate the placement of L with [DLT] as per the Remove a child or young person from a placement process."[25]
4. After some background information about L, the memo requested:[26]

Woodville case management are submitting this memo for the consideration of L to be removed from the care of [DLT] for the purpose of a forensic interview process where she is independent of coaching from carer [DLT] and foster siblings and assess the viability of L safely returning to the care of [DLT].

5. There follow three further sections of the memo: "child protection background"; "placement history" and "summary of ongoing child protection concerns with the placement". Then there is a section headed "Concerns for L". This section includes the following:[27]

Both SAPOL and CPS expressed their concerns with L continuing to reside in the placement, the carer inability to act protectively, and the carer's ongoing dismissive attitude towards all concerns being raise[d], particular with L's ongoing disclosures of vaginal pain, bleeding and sexual abuse. CPS and SAPOL were in favour of a forensic interview, however be removed from the placement and have time away from [DLT] so she cannot coach or influence L's responses. CPS are in favour of the forensic interview occurring through a planned transition of L coming out of the placement. CPS also expressed with L's ongoing disclosures [of] abuse (physical and sexual) there are enough grounds for removal due to the accumulative harm being caused to L. > > (emphasis added)

6. After a description of various care concern notifications, the memo continued with a section headed "interventions" and a description of the consultation to date. Under the heading "future case direction", the memorandum said:[28]

Case management recommend that alternative care arrangements be sought for L for the foreseeable future.

7. In the memorandum the purpose of the proposed removal was said to be "a forensic interview process where she is independent of coaching from carer [DLT] and foster siblings and assess the viability of L safely returning into the care of [DLT]".[29]
8. There was no reference in the memorandum to the removal being required, or not required, to secure L's "immediate safety". In any event, on its face the memorandum is seeking the approval for a removal by a regional director, who has the authority to make such a decision irrespective of whether the child's immediate safety is at risk.
9. When asked in examination-in-chief why she asked staff to prepare the memorandum,[30] Ms Willson said that it was to give Ms Wicks "visibility" of the matter. It was later acknowledged by Ms Willson in cross-examination to have been prepared in order seek Ms Wicks' approval.[31] Ms Willson's explanation was that approval was sought because it was "best practice" to do so.[32]
10. There was no reference in the memorandum to a removal that was to be undertaken under the exercise of Ms Willson's delegated power. There was certainly no reference in the memorandum or in the emails to Ms Willson having made the decision to remove L on 18 October 2023, by reference to her satisfaction that it was needed to secure L's immediate safety, or otherwise.
11. The covering email authored by Ms Willson to Ms Wicks said:[33]

We will attempt to execute this plan via consent however may need to invoke the removal process.

12. That was consistent with Ms Willson having, at least as her preferred option, that the applicant gave her agreement to L moving to an alternative placement, and a second option that Ms Wicks approve a removal.
13. Mr Tredrea suggested to Ms Willson that sending the memorandum to the regional director was consistent with Ms Willson understanding that the circumstances of the removal required the regional director's approval. Ms Willson replied:[34]

"Both had delegation. I had delegation to make a decision. Best practice is to do that with our Director."

Monday 23 October 2023 in the afternoon: the Regional Director responds

1. The memorandum and supporting documents arrived with Ms Wicks at 12.45 pm on Monday 23 October 2023.
2. In light of Ms Wicks' response to receipt of the memorandum, discussed further below, it is evident that Ms Wicks held the view, perhaps unsurprisingly given its terms, that she was being asked to be the decisionmaker in respect of L's removal.
3. Ms Wicks responded by email to Ms Willson at 1.50 pm.[35] In her email, she asked for additional information to be gathered. After listing the requested information, she said:[36]

Notwithstanding the questions above, in consideration of the documentation I have reviewed so far, I would first recommend - if not already undertaken - communication with the carer around the concerns with the view to coming to a mutual agreement for L to be supported to reside elsewhere whilst the appropriate assessments are undertaken. The need for safety to be established is clear - however please attempt this in collaboration with the carer so she has an opportunity to make an informed decision/contribute to planning. If she is unwilling/unable to engage in these discussions, then I would appreciate further detail re these conversations in addition to my queries above.

4. Ms Wicks' response was not consistent with Ms Wicks having an understanding that Ms Willson had made, or was contemplating making, a decision to remove L under Ms Willson's delegated authority. Rather, it was consistent with Ms Wicks believing that she was being asked to make a decision to remove a child from a carer, and that she wanted various steps taken first.
5. Ms Willson responded at 4.41 pm,[37] and her email opened with the words:

Yes, as advised we certainly plan to undertake interim placement via consent. The memo is in anticipation should the carer withhold L as she has previously done... > > We will request to pick L up post the meeting tomorrow morning. We will explain what will be required (s s84) should L [be] withheld.... Let me know if you need anything further - it might be worthwhile having a quick teams meeting if you do?

6. There was no evidence as to what was meant by "the meeting tomorrow morning", but it is reasonable to infer that Ms Willson thought that her Woodville office colleagues were meeting with DLT the following morning. That meeting in fact occurred at 2 pm, but nothing turns on that.
7. Ms Willson's email to Ms Wicks contained nothing that indicated that she had formed the view that L needed to be removed for her immediate safety, or that she (Ms Willson) anticipated making the removal decision. Rather, it was consistent with the proposition that there was going to be an attempt at a placement move by consent, and if that did not succeed, then Ms Wicks' decision to remove the child was sought.
8. Mr Tredrea took Ms Willson, in cross-examination, to her email to Ms Wicks at 4.41 pm, and Ms Willson agreed that the words of the email reflected her recognition that she required Ms Wicks' approval for a removal of L.[38] It is difficult to reconcile that evidence with Ms Willson's expressed view that the decision had already been made.
9. Ms Wicks responded to Ms Willson's email with an email that expressed hope that the meeting with DLT the following day would be successful and that if not, "I am happy for you to ring me to talk through situation and we can then discuss next steps."[39]

Tuesday 24 October 2023: the meeting with the applicant, DLT

1. At 10.34 the next morning, Ms Willson wrote to Ms Wicks:[40]

Just to clarify, are you supporting the s 84 should we need to use it? I just want the team to be clear when they have the meeting which is at 2 pm so they can explain to the carer what action we will need to take if she will [sic: will not] consent.

2. The use of the word "we" in this context is unfortunate. It suggests that the decision-maker's thinking process is towards joint decision-making. It is not clear which combination of people "we" refers to. Joint decision-making may be ideal from some perspectives, but is not in conformity with the decision-making structure provided for in the legislation, or the instrument of delegation. Both are directed to decision-making, the Chief Executive or the Chief Executive's delegate, and in some circumstances direct the decision-maker to consult with others. The decision, however, is an individual one.
3. Ms Willson's oral evidence in relation to her email to Ms Wicks was as follows:[41]

Mr Pager: ... What answer were you seeking to achieve... > > Ms Willson: To approve our decision to remove L > > Mr Pager: And did she approve your decision to remove L? > > Ms Willson: I approved the decision > > Mr Pager: And why was that? > > Ms Willson: Because the case management team went in and had a discussion with [DLT] and then they spoke to me and I made the decision to remove L. > > Mr Pager: Can you approve a decision to remove? > > Ms Willson: Yes > > Mr Pager: Do you have the power to do that? > > Ms Willson: Yes I do.[42]

4. Ms Wicks responded to Ms Willson's email at 11.22 am in terms that could not have been clearer as to her understanding that if a removal were to occur, she (Ms Wicks) was to make the decision. She wrote:[43]

If consensus cannot be reached then I would ask that you ring me, provide update around the conversations had & then I will finalise the decision. My strong plan is we work to develop a plan alongside the carer.

5. Mr Tredrea suggested to Ms Willson that Ms Wicks was instructing Ms Willson that Ms Wicks would finalise any removal decision. Ms Willson accepted that Ms Wicks' email conveyed that that if consensus could not be reached at the meeting, Ms Wicks would finalise a removal decision.[44] In relation to Ms Wicks' preference to attempt consensus with DLT, Ms Willson said:[45]

It wasn't an unreasonable preference and we accepted that advice given that we hadn't had the opportunity to talk to [DLT] about the most recent care concern that had come through.

6. At 2:30 pm on Tuesday 24 October 2023, Departmental staff met with DLT. In attendance were Ms Blowes (DCP Senior Case Manager "SCM"), Ms Lepore, DCP Supervisor, Ms Lins (Lutheran Care Support worker "Robyn"), Ms Tidswell, Lutheran Care Team Leader, and DLT. Ms Willson was not present at the meeting.[46] The events of that meeting were recorded in a three-page record of meeting case note which included a detailed account of what occurred.[47]
7. The case note recording this meeting included a description of a discussion between the SCM and the applicant about L's disclosures of vaginal pain, and about the applicant's treatment of L's disclosures. After some time, the SUP joined the conversation and it was recorded as follows:[48]

[SUP] advised that Case management do not feel that L is currently safe and that there are of (sic) lot of concerns for L at this time. SUP advised that as a recommendation from the forensic assessment, was (sic) L needed to undergo a forensic interview and that she need to be out of the home for this process for the foreseeable future. > > [DLT] stated "I don't do anything to these kids, they are spoilt they have a good life" [DLT] continued to talk about how she has done everything to keep L safe, DCP keep doing whatever they way, they have provided no support to the placement or children and just want to take the kids. > > Robyn interrupted [DLT] mid-conversation and stated "[DLT] I'm sorry to interrupt you, but DCP have just said a very serious thing, I want to hear how they are going to finish this, can you please let them continue" "I think it is important that you really hear this" [DLT] agreed. > > SCM and SUP explained to [DLT] that L has made some disclosures and is continuing to talk to people about not being safe at home and needing to keep secrets. The need for a forensic interview for L is high and she deserves the opportunity to be listened to and given a safe space to make disclosures. > > SUP explained that likely there would not be any contact for the duration of the interview. Cassie asked re letters, SUP and SCM advised that they needed to consult with CPS and Psych services to determine what level of contact would be appropriate. SUP advised that likely would be none until after the interview which could take up to 3 months, then advised that there may be some level of contact after the interview process or if she became settled. > > SCM advised they would like for L to become as settled as possible. [DLT] commented "she will never settle, you are removing her again, this is her third removal." You people are giving her an attachment issue." > > Robyn asked "so what happens now? When will L enter care?" SCM advised that they would like L to come right away, and would like it to be calm and supportive to L. SCM advised that she did not want it to become heightened and cause alarm or upset to L. SCM advised she would like and think it would be in L's best interest for L to be able to say goodbye to [DLT] and for [DLT] to be able to help L prove what is going on. SCM advised that she wanted this to occur in a child focused manner and not escalate. SCM claimed that she was aware last time that [DLT] was whispering things to her and had pointed out cameras within the room they were in last time. SCM also advised she did not want this to occur again. [DLT] denied and stated "I never said there were any camera" SCM respectfully denied this and stated she was aware she did as DCP are able to hear everything said in this room. [DLT] scoffed and rolled her eyes but did not respond. > > Robyn commented about how she was at the removal from November last year and it was traumatic for everyone especially [DLT] and L and she did not want this to occur. > > SCM and SUP advised that they agreed which is why SCM was verbalising to [DLT] what she did not want a repeat of. Robyn asked [DLT], "where is L now" [DLT] advised that she was with [TZF]. > > SCM clarified with [DLT] that if [sic: whether] she agreed with L being placed elsewhere and would agree to L coming to the office now. [DLT] commented that "you can do whatever you want, like I have a choice." SCM once again clarified that she agreed with this and that L would be brought to the office. [DLT] once again said "yes like I have a choice." > > [DLT] stated, "I'm leaving" she was visibly upset and left, Robyn attempted to follow her but could not catch her.

8. Ms Willson's oral evidence was that she read the record of meeting, which was prepared on the case management system.[49] Staff also told her about the meeting.[50] Ms Willson's oral evidence was that, "It got told to me that in the end [DLT] said, "do what you need to do".[51]
9. It was Ms Willson's evidence that it was after becoming aware of what had happened in the meeting, that the removal became "urgent".[52] It became urgent because the Department had not been able to have a conversation with the applicant to arrange a consensual alternative placement. She said:[53]

I was satisfied that there was an immediate need to remove L following hearing a report of the discussion between staff of DCP and [DLT] that [DLT] had not acknowledged the safety concerns regarding L and there was a history of that. There was no alternative way of establishing safety in that meeting.

It was planned and then became urgent with immediacy in it because of the conversation that occurred and we couldn't establish any safety for L in that conversation.

11. At some time between the 2 pm meeting and 5.30 pm, Ms Willson phoned Ms Wicks to advise her about the meeting. That phone call is not documented but was the subject of oral evidence by Ms Willson. She said that she told Ms Wicks that DLT did not agree with the concerns (about L's safety), had not acknowledged the concerns, that the staff could not work through any way of securing safety for L to stay there, and that L needed to come out of the placement. Her evidence was that she told Ms Wicks that DLT had reluctantly agreed for L to come out of the placement.[55]
12. Ms Willson told the Tribunal that the decision was then implemented later on in the afternoon of Tuesday 24 October 2023.[56] Officers of the Department removed L from the applicant's care by taking custody of L from the babysitter who had been looking after her over the weekend. L then went to an alternative placement.
13. At 5.37 pm on Tuesday 24 October 2023, Ms Wicks sent an email to Ms Wilson and copied in certain other Departmental staff. It read:[57]

Thanks Rachel for the update & to the team for all your hard work in challenging circumstances. I note agreement between all parties has been reached satisfactorily this afternoon; therefore I will consider this memorandum withdrawn.

14. From this, it is apparent that Ms Wicks had formed the view that a removal decision was not required because the carer had agreed that L should be placed elsewhere.

1. Ms Willson's final position was that her decision to remove L from the applicant's care occurred on 18 October 2023,[58] and was then implemented on 24 October 2023 based on the urgency that arose from the applicant's failure to acknowledge L's need for safety.
2. I reject that account on the following basis.
3. The evidence points strongly against Ms Willson believing that she had made a decision under s 84(1)(c) to remove L on 18 October 2023. Her contemporaneous acts were consistent with her forming the view that L should come out of the placement on that date, in order to create an environment in which L could participate in a forensic interview process, and to prevent further abuse. It must be said, however, that the second of these reasons did not feature significantly in the documentation. What is evident from her contemporaneous actions is that whilst it was her opinion that L should come out of the placement, she did not consider that she had made the legal removal decision on 18 October 2023 - even a decision that was not going to be implemented immediately. The course of seeking Ms Wicks' approval, and the concessions she made in cross-examination,[59] strongly suggest that she was taking a path of obtaining approval. I do not accept Ms Willson's evidence that the memo was a formality to enable the regional director to be aware of the decision.[60] It was evident that Ms Wicks did not think so either. Ms Wicks' conduct was entirely consistent with her understanding that she was being asked to make a removal decision, and she was ensuring that the carer's rights as set out in s 82 of the Act were being afforded to the applicant.
4. If I were wrong about that, and if 18 October 2023 was the occasion of the decision, and it were accepted that it was made by Ms Willson for the purpose of L being assessed by forensic interview, it would nevertheless be a decision made beyond Ms Willson's delegated power. This is because it would not have been a decision made to secure L's immediate safety. A removal for the purpose of a forensic interview at some stage in the future was a decision that could only have been made by the regional manager, Ms Wicks, or someone higher in the hierarchy, who could decide that a child should be removed in circumstances other than the need to achieve immediate safety.
5. The evidence is more consistent with a decision by Ms Willson to remove L from the applicant's care on the afternoon of Tuesday 24 October 2023, after she became aware of the outcome of the meeting between Department and the applicant.
6. I find that this is the decision.
7. As such, it was an undocumented decision in the sense that there is no contemporaneous record by Ms Willson that she made the decision, and therefore no reference to the need to do so for L's immediate safety.
8. There are three potential reasons for Ms Willson's decision:
   1. Firstly, that the decision was by consent and was not a removal.
   2. Secondly, that she did not consider that L could safely remain in DLT's care for any further time; or
   3. Thirdly, that L needed to be taken out of the placement in order to accommodate her away from DLT and her siblings for a forensic interview.
9. The first account, which appears to have been the impression Ms Wicks was left with, was not effectively defended by Ms Willson at the hearing. It is not defensible. The applicant's conduct at the meeting could not fairly be described as a consent to the removal.
10. The second account is consistent with Ms Willson authorising the removal the same afternoon as the meeting, and not further involving Ms Wicks in the decision-making. However, I do not accept that the account that this is what Ms Willson was thinking is corroborated by the evidence. There is no independent evidence that, on 24 October 2023, Ms Wicks performed the decision-making task of assessing whether the conditions of her authority were met, and made a decision. It is not even her own evidence that she did so.
11. The third account is the most consistent with the evidence. Ms Willson formed a view on 18 October 2023 that L should come out of the placement at some stage in the immediate future for a forensic interview. She was open to Ms Wicks' view that the preferable way for that to occur was by the applicant giving consent. When the applicant did not give consent, Ms Willson decided to remove her on 24 October 2023. In so doing, she gave no fresh consideration to the criteria that engaged her authority being met. She did not make the decision to secure L's immediate safety because she did not turn her mind to that requirement on that occasion.
12. This occurred because Ms Willson was unclear about the way in which her removal authority operated in conjunction with Ms Wicks' authority. Ms Willson's account of seeking approval because it was "best practice" to do so, and that she was seeking "endorsement" in addition to exercising the decision herself,[61] disclosed that lack of clarity.
13. I am satisfied that Ms Willson's decision was not based on her satisfaction that the child's safety was an immediate risk. It is possible that if she had turned her mind to that, she would have concluded that it was, and made a decision, and documented it.
14. I find that the decision to remove was made by a person who did not have the authority to make the decision for the reasons that it was made.

The bigger question is: what is the consequence?

1. Mr Tredrea submitted that the consequence of the decision having been made without the requisite power is that it was of no effect and that the child must be returned to the carer. He submitted that, based on events that have occurred since the removal, the carer expects to be able to demonstrate that the correct or preferable decision now is not to remove the child from her care.
2. The Department requested to be able to make further submissions if the Tribunal determined that the decision was made without the requisite power.
3. Without further consideration, I am not prepared to accept that the decision-maker's power, having been exercised without authority, gives rise to a decision that is a nullity. It certainly does not necessarily follow, within the protective scheme of the CYPS Act, that the consequence of this finding is that the parties are legally restored their positions as existed immediately prior to the decision being made. The consequences of the order require greater opportunity for consideration than was available at the initial hearing.
4. I will hear the parties further as to the appropriate orders and convene a directions hearing in the first instance.
5. I reserve the right to make amendments to this document in the nature of minor edits not material to the outcome.

1. The decision made by the delegate to remove L from the applicant's care on or about 24 October 2023 is set aside.
2. The parties are to attend a telephone directions hearing to be listed in the week commencing 16 June 2025 for the purpose of directions as to the parties' submissions as to the legal effect of order 1.

[1] The child will be referred to as 'L' in this decision including when quoting documents and other evidence in which the child's name is used.

[2] Section 84(1)(d)-(h) are not relevant to these proceedings.

[6] Case Book ('CB') pp 795 - 798, 'Manual of Practice: Supporting children and young people in care chapter, Ch 22 Remove the child or young person from a placement'.

[7] R-2, affidavit of Rachel Willson affirmed on 9 April 2025.

[24] Affidavit of Rachel Willson affirmed 9 April 2025 at [14].

[30] Ibid 307-314 (there are two copies in the CB).

[59] For example, at AR 3.06 pm and 3.10 pm.