The second respondent submitted that, although the applicant is well-qualified to care for the child, psychological harm would inevitably occur if the child were to be removed from her care due to the child's strong attachment to her. The second respondent argued that she is able to maintain a connection with the child's biological family while she is in her care and that she has already indicated her willingness to do so. She relied upon the expert psychological evidence provided by the Department regarding the child's attachment to her.

The Department relied upon its position in the internal review regarding placement of the child with the second respondent. The Department's internal review decision determined that in placing the child with the applicant, insufficient weight was placed on the disruption to the child's attachment to the second respondent.

Held, setting aside and substituting the decision under review:

• In the Tribunal's view, the CYP(S) Act allows the Chief Executive to choose to reconsider a placement decision if the Chief Executive decides that it is appropriate to do so having regard to the principles of intervention, the placement principles under the CYP(S) Act and all of the circumstances of the case;
• In the Tribunal's view, there is no doubt that there is a risk of harm to the child if she is placed with the applicant because that placement requires the disruption of her strong attachment to the second respondent;
• The Tribunal's assessment is that even though there is a risk of psychological harm to the child if she is placed with the applicant, due to the particular circumstances of this case, the risk is relatively low;
• The Tribunal has concluded that there is a risk to the child of psychological harm by not placing her with a family member;
• The Tribunal has decided that the risks for the child if she is not placed with her biological family, outweigh the risk of harm if her attachment to the second respondent is disrupted by the placement with the applicant;
• Therefore, the Tribunal has decided that the child should be placed with the applicant.

Administrative Review - Children and Young People (Safety) Act 2017 - Children and young people in Chief Executive's custody or Guardianship - Review of a decision of the Chief Executive or Delegate - Removal from placement

Children and Young People (Safety) Act 2017 ss 7, 8, 10, 11, 17, 84, 157, 158, 159

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 35, 60

Breeding v Registrar of Firearms [2017] SACAT 40

CPJ16 v Minister for Immigration and Border Protection [2018] FCA 450

GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75

M v M (1988) 166 CLR 69

WWZ & Anor v The Department for Child Protection [2020] SACAT 111

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. 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.

1. This is an application for the review of a decision made by the first respondent, the Chief Executive of the Department for Child Protection (the Department), concerning the placement of the child, QCJ.
2. The decision was made under section 84(1)(a) of the Children and Young People (Safety) Act 2017 (the CYP(S) Act).
3. Section 158 of the CYP(S) Act states that the Tribunal has the power to review certain decisions under the CYP(S) Act and that includes a decision made under section 84(1)(a) of the CYP(S) Act.
4. An application for review is made under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
5. Section 34 SACAT Act states that the Tribunal will conduct the review by way of rehearing, and must reach the correct or preferable decision giving appropriate weight to the original decision. Section 34 states that the Tribunal must consider the evidence or material before the original decision-maker, and any further evidence or material the Tribunal considers is relevant and appropriate to take into account in the course of the review process.

The admission of further evidence in the course of the review

1. In response to their obligations under section 35 SACAT Act, the Department has provided to the Tribunal a folder of documents (the Book of Documents) and a redacted version of that information has been provided to the applicant and the second respondent.
2. In the course of the review, the Tribunal has been provided with the following further documentary evidence:
   • Expert opinion of Fiona Fallo dated 13 August 2023;
   • Affidavit of KJS dated 28 September 2023;
   • Affidavit of KJS's mother dated 28 September 2023;
   • Affidavit of Rebecca Perks dated 3 October 2023;
   • Affidavit of Danielle Hudson dated 3 October 2023;
   • Affidavit of JKL dated 4 October 2023;
   • Family tree of KJS;
   • An article entitled "Children's attachment needs in the context of out-of-home care" by Sara McLean (referred to as the McLean article);
   • An article entitled "Attachment and Human Development" co-authored by 70 experts in the field (referred to as the Forslund article);
   • An article entitled "Adverse impact of multiple separations or loss of primary caregivers on young children" written by Margaret J Briggs-Gowan, Carloyn Greene, Julian Ford, Roseanne Clark, Kimberly J. McCarthy and Alice S Carter (referred to as the Briggs-Gowan article).
3. The applicant, KJS, gave evidence at the review hearing and she also called the following witnesses to give evidence:
   • KJS's mother;
   • Ms F Fallo.
4. The Department called the following witnesses to give evidence at the review hearing:
   • Mr A Segal;
   • Ms P Rayment.
5. The second respondent, JKL, gave evidence at the review hearing.
6. The Tribunal has a discretion under section 34 SACAT Act as to whether or not to accept additional evidence and material in the course of a review. That discretion must be exercised taking into account factors such as the relevance of the evidence, whether it was available at the time the original decision was made and whether it is likely to assist the Tribunal in making the correct or preferable decision.
7. All counsel were agreeable to the Tribunal admitting the additional evidence and we consider it is appropriate to accept that additional evidence and material in the course of this review.

1. The Tribunal has conducted a number of directions hearings in this matter and in the directions made on 16 June 2023 the Tribunal directed as follows:

a) The disclosure of the marked but unredacted documents of Volume 1 of section 35 Book of Documents[1] in this matter to the applicant and second respondent is prohibited.[2]

• the applicant and her legal representatives;
• the Department's representatives and their legal representatives; and
• the second respondent and her legal representatives

are excluded from any hearing of the Tribunal in relation to these proceedings;[3] and the matter is to be heard in private under section 60(2)(e) SACAT Act.

1. The publication of any evidence given to the Tribunal, and the contents of any document produced to the Tribunal, is prohibited.[4]

1. We confirm that those orders continue to apply until further order of the Tribunal.

The decision about whether or not to observe QCJ

1. Section 159(1) CYP(S) Act states that in any proceedings under that part of the Act, the Tribunal must give a child or young person to whom proceedings relate, a reasonable opportunity to personally present their views related to their ongoing care and protection.
2. However, section 159(2) CYP(S) Act states that sub-section (1) will not apply if the child or young person is not able to do so, or it would not be in their best interests.
3. Given QCJ's young age (she was not yet five at the date of the review hearing), and having discussed the issue with counsel, we formed the view that the only appropriate approach would have been for the Tribunal to observe the child in a neutral setting. However, due to the clearly defined nature of the dispute, and taking into account the information about her which has been provided to the Tribunal, we considered it would not be helpful to us in coming to a decision about the application for us to observe the child and so we did not do so.

1. The decision under review is a decision by the Department to place QCJ in the care of a foster carer, the second respondent.
2. That decision was made in the context of an internal review of an earlier decision by the Department[5] to place the child in the care of the applicant, who is her paternal aunt.[6]
3. The second respondent raised two issues in the course of preliminary arguments in this matter:

a) First, she challenged the competence of the review on the basis that the decision of which the applicant seeks a review is the decision made by the Department in dealing with an internal review application made under section 157 CYP(S) Act and that is not a decision which may be reviewed by the Tribunal under section 158 CYP(S) Act.

Her Honour Justice Hughes dealt with this challenge in a directions hearing conducted on 8 August 2023. Her Honour found that the application is competent because it is an application for the review of the earlier decision to place the child with the applicant (made on 7 November 2022), but subject to the subsequent placement decision made on internal review on 13 April 2023. In other words, the decision of which a review was sought by the Tribunal is a decision made under section 84 CYP(S) Act, which is a decision concerning the placement of a child, and that is a decision which is reviewable by the Tribunal.[7]

b) Second, the second respondent argued that the original decision (to place the child with the applicant (the decision made on 7 November 2022), was made by a delegate of the Department who was not properly authorised to make that decision. The basis of this argument was that the decision of which a review was sought was a decision concerning the removal of a child, and the person who made the decision did not have the necessary delegated authority to make decisions concerning the removal of a child.[8]

Her Honour Justice Hughes also dealt with this challenge in the directions hearing conducted on 8 August 2023 and found that the decision of 7 November 2022 was properly characterised not as a decision to remove the child from the care of the second respondent, but as a decision to place her with the applicant. Her Honour stated that, while a decision to place a child with a different carer may involve the termination of a placement with a previous carer, that is not the same thing as a decision to remove a child.[9]

1. This is a decision about the child, QCJ.
2. The child was born in December 2018. At the time of the review hearing, she was four years old.

QCJ is an intelligent, vocal child who loves to play and run around until she is red in the face. When she commenced at Child Care, she formed friendships with other children. She loves stories and songs to help articulate how she is feeling.[10]

The child enjoys going to kindy. She loves outdoors, [being] in sand and mud a lot, loves touchy-feely things and active movement like swings.[11]

1. The child's biological parents are CXP and TIU. The biological parents are no longer in a relationship.
2. The child's mother subsequently commenced a relationship with another person. The child was removed from their care on 5 June 2020 when she was 18 months old.
3. On 9 June 2020 the child was placed in the care of the second respondent as her foster mother through Lutheran Community Care.[12] The placement was initially for three months. The second respondent has no biological relationship with the child. She has no other children living with her.
4. On 6 July 2020 the Youth Court ordered that the child be placed under the guardianship of the Chief Executive Officer for three months.
5. On 30 September 2020 the Department received a CPS Parent Capacity Assessment Report which recommended that the Chief Executive should apply for long term care and protection orders, because of the inconsistencies in her care before she was removed from the care of the child's mother and her partner. The report assessed that the child required intervention to prevent long term interpersonal difficulties and that she should remain in her current placement.
6. On 17 December 2020 the Youth Court made a subsequent order that the child be placed under the guardianship of the Chief Executive until she attains 18 years of age.[13]
7. The applicant is the sister of QCJ's father. She initially contacted the Department on about 19 August 2020 to advise that she would like to be considered as a kinship carer for the child.[14]
8. Although this is not entirely clear from the Book of Documents, it appears that a decision was made to place the child with the second respondent on a long term basis on 11 March 2021.[15] This decision appears to have been based on a view by a Departmental psychologist that the child should not be moved from the second respondent, due to the bond she had formed with her.[16]
9. On 31 March 2021 the applicant contacted the Department to advise that she was travelling to South Australia for her regular four weekly visit to see the child and she enquired about the progress of her kinship assessment.[17]
10. On 15 April 2021 the Department informed the applicant that a decision had been made not to assess her as a kinship carer for the child, and that the child would remain with the second respondent.[18]
11. The applicant met with a representative of the Department on 28 April 2021. It appears that she was under the impression that the Department was in the process of assessing an application for her to become a kinship carer, but this was not actually the case.[19]
12. On 31 May 2021 the applicant was provided with the formal documentation to apply for approval to be a kinship carer.[20] The Department commenced checks of her and her partner on 31 January 2022 and they were approved as kinship carers on 30 May 2022.[21]
13. Various complaints were made about the manner in which the Department had handled decisions in relation to the child, and on 18 March 2022 the Department referred the matter for a review (to be conducted within the Department). The review was finalised on 7 June 2022.[22]
14. As a result of the review the Department considered the various options in relation to the child and decided to reconsider reunification with the child's mother and stepfather. The Department requested a report from Connecting Families about the possibility of reunification.[23]
15. The Department determined that, if reunification with the child's mother and stepfather was not viable, then the Department would place the child with the applicant.[24]
16. On 10 October 2022 Connecting Families reported that they had been unable to make an assessment of the child's mother and stepfather, due to their failure to engage, and so Connecting Families had closed the case.[25]
17. The Department's decision to place the child with the applicant was first communicated to the second respondent in a meeting on 7 November 2022.[26] This was confirmed by letter on the same day.[27]
18. On 24 November 2022 the Department met with the applicant to inform her of their decision to place the child with her, but that the second respondent had indicated she would be seeking an internal review.[28]
19. On 28 November 2022 the second respondent lodged a request for an internal review of the decision to place the child with the applicant.
20. On 12 December 2022 the Department instructed Ms Pat Rayment to provide an independent psychological assessment of the child in relation to the issues concerning her care.[29]
21. On 23 January 2023 Ms Rayment provided a written report about her assessment of the child.[30] Her assessment is that she would be at serious risk of harm if she were removed from the second respondent's care and that risk outweighs the benefits of a kinship placement.
22. Ms Anna Clark completed the internal review on 29 March 2023 and concluded that the decision to place the child with the applicant should be reversed, and that her placement with the second respondent should continue.[31]
23. The applicant applied to the Tribunal seeking a review of the Department's decision concerning the placement of the child.

1. The applicant's case is not based on any submission that there is any inadequacy in the care provided to the child by the second respondent. To the contrary, during the hearing on more than one occasion, the applicant acknowledged that the second respondent has provided a high level of care for the child, and she also acknowledged her family's gratitude to the second respondent for what she has done for the child.[32]
2. The applicant's case is that the long-term benefits of placing the child with her, as the paternal aunt, outweigh any risk of harm to the child arising from disrupting her attachment to the second respondent. The applicant relies on the expert evidence of Fiona Fallo, Clinical Psychologist, to the effect that any risk of harm to the child, is adequately addressed by the substantial mitigating factors in this matter.

1. The applicant says that, due to her academic qualifications and expertise, she is well qualified to care for the child:[33]
   • She has completed a Bachelor of Psychological Science. She has completed a Masters of Primary School Teaching.
   • She has worked in the early childhood education and care sector including working with children between the ages of three and eight diagnosed with Autism Spectrum Disorder and using Applied Behaviour Analysis.
   • She has worked for Save the Children in regional Victoria and, in the course of doing so, she has delivered community outreach programmes and parenting support classes to those affected by the 2019 bushfires.
   • She has worked as a nanny for a family in which the children have experienced significant trauma including the death of a parent, neglect, sexual abuse and removal from a parent - as a consequence of which they exhibited extreme trauma behaviours.
   • The applicant is currently working for the Department of Education (in South Australia) as a relief teacher.
2. The applicant says that she and her partner have demonstrated their commitment to the child by:

• their early contact with the Department requesting for the applicant to be the carer for the child,[34]
• their repeated contacts with the Department to pursue the request,[35]
• visiting the child every four weeks during COVID even though at the time she was living in regional Victoria and so the travel arrangements were challenging;

1. re-locating to South Australia on a permanent basis (with her partner) in accordance with a suggestion by an employee of the Department, for the sole purpose of being near the child; and on the understanding that, if they did so, they would be likely to have the child placed with them; [36]

• remaining in South Australia and establishing a life here with her partner after being informed by the Department that (contrary to earlier advice), the child would not be placed with her;

1. seeking to increase their access to the child and pursuing their wish for her to be placed with them.[37]

1. There are a number of family members who want to be involved in the child's life - this is illustrated by the number of family members who have expressed an interest in caring for the child; in particular, the applicant's mother (who attended the hearing and gave evidence). She expected those family members to be especially supportive of the applicant if the child is placed with her.[38]

• The applicant has good relationships with their extended family and those connections would be more readily accessible by the child if she were in the care of the applicant. Although most relatives on the paternal side of the family reside in Victoria, she would take the child for visits to Victoria so that the child could establish relationships with her family. In addition, a number of family members have already visited the applicant since her move to Adelaide. Some family members live in South Australia, and she has been in touch with them since moving here. They are supportive of her.
  • While she has been in South Australia, the applicant has been able to establish good relationships with some members of the child's maternal family.
  • The bonds in their family are strong, and they enjoy family celebrations on special occasions (such as birthdays etc). The child would be included in those celebrations.
  • There are a number of children in the family of about the same age as the child with whom she could establish a relationship.

2. The applicant says that she has cooperated with the Department and the second respondent in relation to the child. She and her partner have created a home with a place in it for the child and even though their time with her has been limited (due to the decisions of the Department), they have developed a good relationship with her.
3. The applicant relied on the expert evidence of Ms Fallo (which will be discussed later in this decision).

1. Mr Crouch relied on the documentary evidence provided to the Tribunal as contained in the Book of Documents.[39] He also called Ms Rayment to give evidence to the Tribunal.
2. We take the Department's current position to be as it is stated in the Internal Review decision.[40]
3. The reviewer finds that in making the decision to place the child in the applicant's care; rather than that of the second respondent, the Department placed insufficient weight on "... the impact of rupturing [the child]'s attachment relationship with [the second respondent]."[41] The report may be summarised as follows:

a) The decision to place the child with the applicant did not place sufficient weight on the fact that the child's placement with the second respondent is in a safe, nurturing, stable and secure environment (as required by section 11 of the CYP(S) Act). > > b) The decision to place the child with the applicant, fails to place sufficient weight on the fact that the second respondent has become the child's psychological mother and fails to give sufficient weight to the child's love of and attachment to the second respondent, as required by section 8(1)(b) of the CYP(S) Act and the Practice Approach's Permanency Placement Paper.[42] > > c) The child has a strong attachment to the second respondent. Placing her with the applicant is likely to cause her psychological harm due to the strength of that attachment. Accordingly the decision is inconsistent with the principle stated in section 7 CYP(S) Act.

4. The reviewer acknowledges that there were a number of deficiencies in the Department's decision-making process, for example: the Department did not make the decision about the long-term placement of the child in a timely manner as required by section 10(1)(a) CYP(S)S Act. And there was an unreasonable delay in the approval of the applicant as a kinship carer.[43]
5. The Department relied on the expert evidence of Ms Rayment (which will be discussed later in this decision).

The second respondent's evidence and submissions

1. The second respondent does not suggest that the applicant would not be a suitable carer for the child. She says that she (the second respondent) is particularly well qualified to care for the child due to her qualifications and life experience. The second respondent says that she believes that intervention in the child's placement with her will inevitably lead to psychological harm to her because of the child's strong attachment to her. Further, she says that intervention in the child's placement with her, to place her with her biological family, is not warranted as that connection is able to be maintained while the child is in her care, and she says that she has already demonstrated a willingness for that to occur.
2. The second respondent says that she has the necessary qualifications and experience to be the carer for the child:[44]

• She is a speech pathologist and she has over 20 years' experience working as a paediatric speech pathologist.
• She has experience in dealing with children who have experienced trauma:
  • Her mother worked for the YMCA and ran camps to support teenagers experiencing, or who had experienced, trauma - sometimes the second respondent would accompany her mother;
  • After graduating from visual arts school she was a support worker for adults and children with intellectual difficulties;
  • She also worked with a person with autism and an intellectual disability;
  • She has worked in Africa in orphanages, on a number of occasions.
• She has undertaken various parenting courses including -
  • Circle of Security;
  • Therapeutic Crisis intervention for Families;
  • Caring for children and young people with trauma - foster carers;
  • Trust based relation intervention;
  • Thriving versus surviving contact - care impact;
  • Treating trauma master series.

b) She has a sound knowledge of the roles and responsibilities of a foster carer because of her involvement with family and friends who were foster carers.

1. She has demonstrated the necessary skills to be a competent foster parent for the child, for example, managing health issues.[45] She has also identified ongoing developmental issues for the child and has taken appropriate steps to have them addressed.[46] For example, when the child first came into her care, she was experiencing delays in her speech and the second respondent taught her to use sign language as a way of gradually improving her speech. She has demonstrated an ability to remain calm and to manage any challenging behaviours well.[47] For example, when the child first came into her care, she exhibited challenging behaviours[48] but her success with the child's development and behaviour has been recognised by psychologists and other Departmental workers, who have noted the child's progress while in her care.[49]

1. The second respondent has demonstrated her commitment to the child, for example, by stopping work for an initial period of six months when the child came into her care, subsequently extending that period when the child became unwell and then changing her work arrangements so as to be as flexible as possible.[50]
2. While placed with the second respondent, the child has developed attachments to the second respondent's own large family and her local community:
   • The second respondent has a large family including her mother, her sister and husband, brothers and their partners, two sisters (who live in Canada), and her nieces and nephews. Two of her nieces have children the same age as the child and she enjoys spending time with them. The child has a particularly close relationship with one of the second respondent's sisters who regularly collects her from kindergarten. The son of one of her nieces attends the same kindergarten as the child. The second respondent's family often has family celebrations such as birthdays, Thanksgiving and Christmas and the second respondent and the child are included in those celebrations.
   • They attend the local church (and the Sunday School is also attended by the daughter of one of the second respondent's nieces).
3. She has cooperated with the Department and she has shown a willingness to facilitate a connection with the child's biological family. The Department has performed home visits and has never questioned her ability to provide care for the child.
4. The child is entering Reception next year and any proposal to change her placement should take into account the destabilising consequences of that decision for her at a critical time in her development.

1. In dealing with this application, the question for us is this: is the Department's decision to reverse the decision that the child should be placed in the applicant's care, and instead, that the child should remain placed with the second respondent, the correct or preferable decision?
2. We will answer this question by addressing the following issues:

a) Was the Department entitled to consider intervening in the decision to place the child with the second respondent? > > b) If so, in considering whether or not the decision under review is the correct or preferable decision: > > * What weight should be given to the decision under review? > * What are the factors which should be taken into account in making the decision about the placement of the child, and what weight should be given to those factors?

1. This a decision about the placement of the child. She is under the guardianship of the Chief Executive of the Department until she is 18 years old. When a child has been placed under the guardianship of the Chief Executive, the Chief Executive has the power to make a decision about the placement of the child under section 84(1) CYP(S) Act. Section 84 CYP(S) Act relevantly states as follows:

(1) ... the Chief Executive may, in relation to a child or young person who is in the ... guardianship of the Chief Executive from time to time ...

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

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

Section 84(3) CYP(S) Act states that in exercising powers under that section, the Chief Executive:

(a) must have regard to the principles of intervention, the placement principles ...; and ...

(c) should exercise the power in a manner that is consistent with this Act and any relevant policy published under section 19.

We have set out the principles of intervention and the placement principles in Annexure A.

1. Section 7 CYP(S) Act and section 8 CYP(S) Act set out important objectives for the CYP(S) Act:

1. The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm. 2. (1) In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:

(a) the need to be heard and have their views considered; > > (b) the need for love and attachment; > > (c) the need for self-esteem; > > (d) the need to achieve their full potential. > > ........ > > (3) Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

We have also taken into account the Department's Attachment Practice Paper and the Department's Permanency Planning Practice Paper in relation to this issue.[51]

Issue 1: Was the Department entitled to consider intervening in the child's placement with the second respondent?

1. Mr Roder submitted that because there is no deficiency in the child's placement with the second respondent, and in fact the placement has been highly successful, there is no basis for the Department to consider intervening. Mr Roder made the following submissions in relation to this issue:

a) It is accepted by all involved in this case that the second respondent has provided a very high level of care to the child. Her placement with the second respondent is safe, nurturing, stable and secure. This meets the test of the placement principles contained in section 11 CYP(S) Act. > > b) It is accepted by all involved in this case that there is a risk of psychological harm in placing the child with the applicant (although the parties disagree as to the extent of that risk) due to the disruption in her strong attachment to the second respondent. In Mr Roder's submission there is no risk of harm in deciding not to place the child with her biological family. Mr Roder's view is that such a decision may involve a loss of potential benefit only. > > c) To consider intervening in the child's placement at this point is contrary to the intervention principles of early intervention and permanence and stability contained in section 10 CYP(S) Act. It is also inconsistent with section 7 CYP(S) Act which states that the overriding consideration in the administration of the CYP(S) Act is to ensure that children and young people are protected from harm.

Mr Roder submitted that in these circumstances, the Department should not have considered intervening in the child's placement with the second respondent.

1. Any decision under section 84 CYP(S) Act may be about the initial or subsequent placement of a child. The CYP(S) Act does not prescribe circumstances in which it is appropriate for the Department to consider making a subsequent placement decision.
2. In our view, the CYP(S) Act allows the Chief Executive (Department) to choose to reconsider a placement decision if the Chief Executive (Department) decides that it is appropriate to do so having regard to the principles of intervention, the placement principles under the CYP(S) Act and all of the circumstances of the case.
3. In this matter, information provided to us from the Department's files does not contain any explanation as to the basis for the Department's decision to consider intervening in the decision to place the child with the second respondent. The following extract from the Internal Review decision is a useful summary of what occurred:[52]

The outcome of the 7 June 2022 practice review was discussed at a meeting on 25 July 2022 and it was concluded that an independent assessment of the viability of reunification with [the mother and stepfather] should be conducted and a subsequent referral was made to Connecting Families on 8 August 2022. Around this time, emails between DCP Executive Director Southern Regional Director and office Manager indicate that options were being considered for [the child] were to 1) reunite with [the mother and stepfather]; 2) place with [the applicant]; or 3) remain in the care of [the second respondent]. > > Following multiple attempts to engage with [the mother and stepfather] by Connecting Families, a report dated 10 October 2022 stated that they had been unable to meet with either parent ... > > ... > > Following the receipt of the case closure report from Connecting Families, a case consultation record dated 17 October 2022 indicates that a decision was made to cease any attempts to reunify [the child] with [the mother and stepfather]. The record indicates that at this time, a direction was made by Southern Regional Director to instead start the process of transitioning [the child] into [the applicant]'s care ...

4. We take the position of the Department to be the position that was expressed at the review hearing by Mr Akash Segal, who is a senior employee within the Department. He is on the Executive. He has held the position of Regional Director of the Southern Region for 3.5 years. He has worked in the Department for 28 years. He has an Economics Degree and he has completed a post graduate degree in Social Administration.
5. Mr Segal provided evidence to the Tribunal concerning Departmental procedures and protocols, and he was able to comment generally about what had happened in relation to the child's case, which was particularly useful to the Tribunal, but he was unable to comment on how that process had occurred in this matter.
6. Mr Segal said that that it may be appropriate for the Department to reconsider a placement decision if a child is placed with a carer who is not a biological family member, but circumstances have changed, and a suitable biological carer has requested to be considered as the carer for the child.
7. We asked Mr Segal to comment on a statement made by one of the Department's psychologists, that the child should only be placed with someone other than the second respondent "... if there are concerns and if there are other caregiver options that can provide [a] more responsive and nurturing level of care ..."[53]
8. Mr Segal responded that he did not agree with that view. He said that, if the quality of care to be provided by two alternative carers was approximately the same standard (and in this matter that is the case), and would meet the requirements of the CYP(s) Act, then, in those circumstances, it would be appropriate to consider an alternative placement, if that alternative placement offered advantages which would not be available in the current placement.
9. We accept that where a child is already in a placement which provides a safe, nurturing, stable and secure environment, then the Department should be cautious to intervene, but we do not accept that simply because a child is placed in a safe, nurturing, stable and secure environment, the Department must not consider intervening in the placement. This scenario is specifically envisaged in the Department's Attachment Paper:[54]

If relatives or kin have expressed an interest to care for the child or young person who has been in a long-term placement with carers with whom they have formed healthy attachment relationships, practitioners need to give careful consideration to the impact that separation from attachment figures will have on the child or young person. Practitioners must also consider whether or not the benefits that might be offered in the relative or kinship placement outweigh the risks posed to the child or young person's psychological wellbeing and development by removing them from an attachment figure with whom they have a healthy attachment.

10. We agree with Mr Segal's view that the change in circumstances in this matter permitted a reconsideration of the child's placement. The applicant and her partner had been approved as kinship carers and they had moved to Adelaide to be closer to the child. Their request for the child to be placed with them provided an opportunity for the child to be placed with her biological family. This had the potential to be beneficial to the child. Therefore, notwithstanding the adequacy of the child's placement with the second respondent, it was appropriate for the Department to reconsider the placement.

Issue 2: In considering the correctness of the decision under review:

• What weight should be given to the decision under review?
• What are the factors which should be taken into account in making the decision about the placement of the child and what weight should be given to those factors?

What weight should be given to the decision under review?

1. We consider that the appropriate approach when conducting a review of this kind should be that the starting point is to place significant weight on the decision of the original decision-maker due to their expertise in the area and their knowledge of the relevant facts.[55]
2. However, as noted above, it is not disputed that there are no written reasons in the Book of Documents about the decision to place the child with the applicant.[56] Effectively the only explanation provided to the Tribunal about the reasons for the original decision to place the child with the applicant, was the oral evidence provided in the review hearing by Mr Segal.
3. Mr Roder submitted that, due to the absence of any documented reasons for that decision, this matter has become a decision de novo, and accordingly the Tribunal should attribute no weight to the decision under review.
4. We accept Mr Segal's oral evidence as the position of the Department concerning the decision to place the child with the applicant.
5. In the review hearing, Mr Crouch made it clear that the Department's current position is as outlined in the Internal Review report[57] (which is that the child should remain with the second respondent).
6. We note that the Internal Reviewer made her decision on the basis of a number of documents on the Department's file; conversations with the second respondent and the applicant, and taking into account the report of Ms Rayment.
7. In the course of the review, the Tribunal has had the benefit of significantly more evidence (as outlined in paragraphs 7 - 10). In particular, that evidence includes the oral evidence of the applicant and the second respondent, lengthy oral evidence of Ms Rayment, a written report from Ms Fallo and her lengthy oral evidence. We will discuss the expert opinions of Ms Rayment and Ms Fallo later in our decision, but for these purposes we note that there is a significant divergence in their opinions, and the Tribunal was provided with a number of articles which are relevant to our decision and, in particular, the Forslund article.
8. We also observe that it is appropriate to acknowledge that the make-up of the Tribunal contributes to the weight to be placed on the original decision-maker's decision,[58] and in this matter the Tribunal has the advantage of the expertise of Member Croser who has significant experience in the area of child protection.[59]
9. Accordingly, while we have taken into account the decision under review, the amount of weight we place on it will be impacted by the factors outlined above.

What are the factors which should be taken into account in making the decision about the placement of the child and what weight should be given to those factors?

1. In broad terms it is agreed that there are two major factors to be taken into account in making the decision about the placement of the child:
   • The risk of harm to the child if she is removed from the second respondent's care; and
   • The risks if the child is not placed with her biological family.

However, it is important to bear in mind that those factors should be considered in the context of sections 7, 10 and 11 of the CYP(S) Act.

1. The applicant relied on the report of Ms Fallo, and her oral evidence at the review hearing.
2. Ms Fallo is a registered clinical psychologist in Australia and has been in clinical practice since 2002. She has a first-class Honours degree in Bachelor of Psychology (Flinders University) (1999) and a Masters degree in Clinical Psychology (University of Adelaide) (2001). Ms Fallo has received academic awards for outstanding achievements and her Masters thesis was titled "Impacts of Maternal Trauma on Attachment" (2000). Her area of expertise is in the translation of empirical findings to clinical practice and in the assessment and treatment of mental illness. Further details of her qualifications and expertise are included in her report.
3. Ms Fallo acknowledged that she had not made a clinical assessment of the child, the second respondent or the applicant. In this regard, she relied on the clinical assessment contained in Ms Rayment's report.
4. Ms Fallo acknowledged that the child has a strong attachment to the second respondent. However, she said that children can maintain secure attachments with multiple carers if they have enough time together and that the development of a new attachment is not necessarily detrimental to an existing attachment. Ms Fallo said that, while attachment is important, it is not the only factor to take into account in a matter such as this. She said that the quality of care being received by the child is more important than the level of attachment and that the ability of a carer to provide a safe haven for the child is also a significant factor.
5. Ms Fallo said that due to the mitigating factors which arise in this particular case, in her opinion, the risk of harm to the child in placing her with the applicant is low.
6. Ms Fallo placed significant emphasis on the following factors as mitigating any risk of long-term harm to the child as a result of placing her with the applicant rather than the second respondent:
   • The child is reaching the normal developmental milestones, she is physically healthy and she is psychologically healthy.
   • She has developed a healthy attachment to the second respondent and a healthy attachment style.
   • She has commenced developing a healthy attachment to the applicant and she is suitable as a carer for the child because she -
     • has been providing a familiar, warm form of care to the child,
     • is an approved carer,
     • has been providing attuned care to the child,
     • is reliable and consistent with the child;
     • is capable of providing the child with a safe haven;
     • has relevant qualifications and experience and
     • her work arrangements are flexible.
   • Appropriate and sensitive transitional arrangements will minimise any risk of harm:
     • The child already has a level of familiarity with the applicant and she has indicated a willingness to adopt similar routines and activities for the child.
     • There is an absence of conflict between the applicant and the second respondent - they both want what is in the best interests of the child.
     • The applicant and the second respondent are willing to cooperate and so there can be an "overlap of care" during which the applicant can seek guidance from the second respondent about issues as they arise.
     • Both the applicant and the second respondent are well placed to manage themselves and their lives to continue to prioritise the child.
     • The transition would occur pursuant to a proper plan and over a period of time so that the child can be monitored and any regression can be addressed.
     • Any transition should include therapy for the child, the applicant and the second respondent.
7. Ms Fallo said that the low risk of harm does not warrant a decision to not place the child in kinship care because of the benefits of placing her with her biological family. Ms Fallo said that kinship care will provide the child with long term benefits, which outweigh any risk of harm arising from the disruption of her attachment to the second respondent.
8. Ms Fallo disagreed with Ms Rayment's approach that the child's previous experience of trauma means she is more likely to suffer psychological harm if she is placed in the applicant's care. She said that the child's previous experience creates a vulnerability which warrants close monitoring.
9. Ms Fallo disagreed with Ms Rayment's reasoning in relying on certain research in support of her conclusions (that the child is likely to suffer serious harm if she is placed with the applicant). Ms Fallo said that the circumstances in some of that research were not analogous to the circumstances in this matter. In particular, Ms Fallo noted that the studies on which Ms Rayment relied involved situations where children lost their access to a caregiver through bereavement, deprivation or trauma or in unplanned, chaotic circumstances and where the loss resulted in children's emotional needs not being met.
10. Ms Fallo said that she would have concerns about long term psychological harm for the child if she is not placed with the applicant. She said that the long-term benefits of placing the child with her biological family, include a sense of identity (which can become problematic for adolescents) and an opportunity for a child to have a placement which is secure, cohesive, stable and intimate within the child's own biological family. She said that these benefits could not be achieved if the child remains in the care of the second respondent even if she does her best to facilitate a connection for the child with her biological family.
11. Mr McCloud submitted that:
    • The second respondent has provided an extremely high level of care to the child, but this matter is about giving her the chance to have "gold standard" care with her family;
    • Ms Rayment's opinion is flawed because she places undue emphasis on attachment theory, when current research places emphasis on the quality of care and in particular the ability of a caregiver to provide a safe haven for the child;
    • The research does not support a conclusion that the child is at serious risk if she is placed in the applicant's care;
    • Any risk is adequately addressed by the mitigating factors and in particular, a proper transition with a transition plan and adequate support for those involved (such as therapy).
12. Mr McCloud submitted that the risks associated with not placing the child with her biological family amount to a risk of harm. He relied on Ms Fallo's assessment about risk.

1. The Department relied on the report of Ms Rayment and her oral evidence at the hearing.
2. Ms Rayment is a Clinical Psychologist and holds a Bachelor of Arts degree majoring in Psychology, an Honours degree in Psychology and a Master's degree in Clinical and Health Psychology. She has been a registered psychologist since 1999 and she has held specialist endorsement as a clinical psychologist since 2007. She has 23 years' experience in the public sector at a senior level in child protection and in health - providing consultancy and supervision on complex cases. Her area of expertise is infant mental health, assessment of parenting capacity and attachment relationships and the treatment of complex trauma for children. For 17 years, she has regularly provided training to DCP[60] staff on attachment theory and the impact of trauma on children. Ms Rayment is contracted as a private practitioner by the Department for Child Protection Psychological Services to undertake independent assessments. Further information about her expertise is provided in her report.[61]
3. In her report, Ms Rayment referred to multiple documents provided to her by the Department in relation to the child's case. Ms Rayment interviewed the applicant and the second respondent (individually) and also observed the child with each of them, for the purposes of the report.
4. In summary, Ms Rayment's clinical findings were:

a) QCJ is a vulnerable child who experienced child maltreatment during her first 18 months of life and a disruption to her attachment relationship with her mother. She has made extremely good progress in the last couple of years and, at the time of the assessment, presented as a happy and sociable child meeting her developmental milestones. However, when under pressure, her behaviour can become emotionally dysregulated. > > b) She has developed a mostly secure attachment to the second respondent. The second respondent is undoubtedly the child's primary attachment figure. > > c) The child has developed a comfortable and secondary attachment to the applicant.

5. In summary, Ms Rayment's views, based on research to which she referred, were:

a) Children develop multiple attachments, but they are hierarchical and a child will have a preferred attachment figure. > > b) Disruptions in attachment relationships in early childhood can be particularly harmful because a child is developing a sense of self in relation to others. If a child has developed an expectation that their attachment figure will always respond to their needs, they feel safe, loved and worthy. But if the caregiver disappears, this may change their self-concept to one of feeling unsafe, unlovable or unworthy. > > c) Loss of an attachment figure leads to grief and may have long-term psychological consequences for the child. Parental loss during the formative years of childhood may fundamentally affect the individual's ability to form and maintain the emotional ties necessary to sustain a relationship. If a child loses their primary attachment figure, this will impact on the child's expectations of relationships. Children who experience multiple losses are almost three times more likely to suffer clinically concerning trauma-related symptoms. > > d) The child has been impacted by her experiences with her mother in the first 18 months of her life - because of this, she still exhibits characteristics of insecurity. Disrupting the child's attachment to the second respondent by placing her with the applicant would be distressing and potentially traumatic. Children who experience separation from their attachment figures have significantly elevated rates of ongoing attachment insecurity and emotional and behavioural problems, even if they remain with a family member. > > e) In the long term, separation from the second respondent is likely to affect the child's sense of self-worth and safety, and may therefore impact on her future mental health and peer relationships. In terms of her mental health, anxiety and anger are normal responses to threats to the ongoing availability of the attachment figure. Loss will increase the child's anxiety and preoccupation about the availability of subsequent attachment figures. Early unresolved loss also leaves a child vulnerable to depression later in life.

6. Ms Rayment concluded as follows:[62]

[The child] should have been placed in kinship care within the first few months of being removed. The background information clearly indicated that decisions to apply for long term care were made early and that appropriate relatives, including [the applicant], had indicated that they were willing and able to provide long-term care for [the child]. It is also acknowledged that placement in kinship care would have conferred advantages to [the child] in terms of facilitating understanding of, and contact with, extended paternal family. > > Nevertheless, now that [the child] has been in a stable, nurturing foster placement for two and a half years and has clearly established a mostly secure attachment relationship with [the second respondent], the significant risk of serious harm to [the child] of disrupting this relationship outweighs the benefits of kinship care. The research evidence clearly indicates that there is a greatly increased risk of future mental health issues, particularly when there are multiple separations for a child, as would be the case for [the child]. Therefore, the least detrimental alternative for [the child] is for her to remain in the care of [the second respondent].

7. In the hearing, Ms Rayment acknowledged that there are some benefits from kinship care but she said that the research comparing placements with kinship carers as opposed to foster carers is equivocal. She said that, in this case, a placement with the second respondent is equally stable as the placement would be with the applicant. Ms Rayment said that, in her assessment, if [the child] is placed with the applicant, this will be an ambiguous loss for her, because she has experienced a previous separation, this will make the loss more significant and, even with the mitigating factors in this matter, it is not possible to eliminate the risk of harm to the child. Therefore, she should remain with the second respondent.
8. Mr Crouch submitted that the likely harm to be caused by any disruption in the child's attachment to the second respondent should only occur when necessary, and it is not necessary at the moment because her care provides the child with an environment which is safe, stable, secure and nurturing.
9. Mr Crouch submitted that both options before the Tribunal create a risk of harm to the child. However, he submitted that the risks for the child are higher if she is placed with the applicant because of her strong attachment to the second respondent (noting that the child regards the second respondent as her psychological mother); and that she is particularly vulnerable due to the inadequacies in her care prior to her placement with the second respondent.
10. Mr Crouch submitted that Ms Rayment's experience as a clinical psychologist is more relevant than that of Ms Fallo and that Ms Rayment provided an adequate response to criticisms of her reliance on particular research. Therefore he submitted that we should place greater weight on Ms Rayment's opinion.
11. Mr Crouch submitted that Ms Fallo's approach applies a "best case scenario" to the transition process and the Tribunal should take into account that any transition may not go according to plan (which would increase the risk of harm to the child).
12. Mr Crouch acknowledged that the Department's processes have been found wanting in this matter, and in particular, the Department has failed to make decisions in a timely fashion. However, he observed that this should not interfere with the Tribunal's proper decision-making process.

1. The second respondent did not produce any further expert evidence, and she relied on the evidence of Ms Rayment. Her case is that the risk of harm to the child is greater by placing her with the applicant than if she remains with the second respondent and the child can have adequate contact with her biological family while she is in her care. She relied on the report of Ms Rayment and her oral evidence at the hearing.
2. Mr Roder made the following submissions:

a) Considering the decision in the light of the legislative requirements

Mr Roder suggested to us that the current arrangement is perfectly satisfactory, and in particular, it satisfies the requirements of sections 7, 10 and 11 of the CYP(S) Act. In those circumstances the Tribunal should be reluctant to disturb the placement with the second respondent, particularly noting the child's vulnerability due to her experiences before her placement with her.

He noted the lack of documentation of the decision to place the child with the applicant. Mr Roder also noted the Department's apparent lack of consideration of relevant provisions of the CYP(S) Act in its decision-making. He submitted that a decision to consider intervening in the child's placement with the second respondent is inconsistent with the CYP(S) Act and in particular, section 7 CYP(S) Act and section 11 CYP(S) Act. It is also inconsistent with the objective stated in section 10(1) of the CYP(S) Act and in particular, the statement in section 10(1)(a) which requires the Department to make decisions in a timely manner and as early as possible to promote permanence and stability.

b) The approach in relation to the concept of "harm"

Mr Roder submitted that the child is at risk of harm if she is placed in the care of the applicant, due to her attachment to the second respondent and the long-term psychological harm that may arise from the rupture of that attachment.

On the other hand, Mr Roder submitted that it is not correct to regard the risks in not placing the child with her biological family, as a risk of harm within the meaning of the CYP(S) Act.

Mr Roder relied on the decisions of M v M[63] and CPJ16 v Minister for Immigration and Border Protection[64] in support of his submission that the Tribunal does not have to be satisfied that harm will actually occur, and may proceed on the basis that it is likely to occur, (if the child's attachment to the second respondent is disrupted by a placement with the applicant) on the basis of Ms Rayment's expert evidence.

Mr Roder referred to the precautionary principle (as discussed in the cases mentioned above) that "... a court may take protective action in relation to a child without actual proof of serious allegations ... and indeed, should not make a positive finding that such an allegation is true unless satisfied of that fact to the civil standard, ..."

c) The approach in assessing the seriousness of the risk of harm

Mr Roder submitted that the Tribunal should place significant weight on the level of expertise of Ms Rayment due to her experience in working with the Department.

Mr Roder also submitted that any risk of harm in placing the child with the applicant could not be regarded as due to the "ordinary vicissitudes of life".

1. At the request of the Tribunal to hear from a representative of the Department, the Department called Mr Segal who gave the following evidence to the Tribunal:

a) In his view, a placement with the child's biological family is preferable because of the significant benefits of placement with a biological family. Such a placement is likely to give a child a sense of belonging and identity which will sustain them through their adolescence. He said that, in his experience, those factors cannot be overrated. He said that a placement with biological family is also likely to avoid future feelings of injustice from not being placed with family. > > b) Mr Segal said that in his assessment, the risk of harm to the child (if she is placed with the applicant) is low due to the mitigating factors in this case and assuming that a well-planned transition is likely to occur.

2. Mr Segal acknowledged that a decision such as this is a difficult decision which has a significant impact on peoples' lives, but in this matter it is the magnitude of the risk that is important, and in his view that was low and out-weighed by the benefits of kinship placement.

Is the child at risk of (psychological) harm if she is placed with the applicant?_**

1. We must bear in mind the definition of harm as contained in the CYP(S) Act. Section 17 of the CYP(S) Act states that for the purposes of the Act, the term harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect.

And "psychological harm" does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life.

1. Although we understood Mr McCloud may have submitted that any risk of psychological harm to the child (arising from her placement with the applicant) is likely to be short term only, and therefore not psychological harm for the purposes of the Act; we do not accept that submission.
2. In our view, there is no doubt that there is a risk of harm to the child if she is placed with the applicant because that placement requires the disruption of her strong attachment to the second respondent. The question is: how do we assess the magnitude of the risk (and this includes an assessment of how the risk might be managed)?
3. Ms Rayment's view is that there is a serious risk of harm to the child if she is placed with the applicant. In the hearing, Ms Rayment made the following points:
   • An established carer relationship is more important for the child than having a relationship with their biological family;
   • We do not know how a proposal to place the child with the applicant will impact on her;
   • There is a risk and, while she acknowledged that the risk can be minimised, her position is: why take the risk if it is unnecessary?
   • Therapeutic support may not be enough to overcome the risk.
4. In her report, Ms Rayment states the following conclusions:[65]

... now that [the child] has been in a stable, nurturing foster placement for two and a half years and has clearly established a mostly secure attachment relationship with [the second respondent], the significant risk of serious harm to [the child] of disrupting this relationship outweighs the benefits of kinship care. The research evidence clearly indicates that there is a greatly increased risk of future mental health issues, particularly when there are multiple separations for a child, as would be the case for [the child]. Therefore, the least detrimental alternative for [the child] is for her to remain in the care of [the second respondent].

5. Ms Fallo's position was the opposite of Ms Rayment's position. She assessed the risk of harm to the child of placement with the applicant as being so low that they were outweighed by the benefits of that placement. Mr Segal agreed with that view.
6. Ms Fallo referred to the special circumstances of this case - the mitigating factors, and in particular, the importance of a transition plan involving the cooperation of the applicant and the second respondent.
7. Ms Fallo referred to the Forslund article. Her position is that the most significant factors in this regard were the quality of care being provided to the child, and whether or not there is a carer who can provide the child with a safe haven in the absence of the second respondent. She said that it is common for all children to experience distress in the absence of their primary carer when a situation occurs in which they seek a safe haven (eg at childcare). However, Ms Fallo said that this can be appropriately managed by factors such as a familiar environment, whether the child knows the carer, the level of communication between the carer and the primary carer, and cooperation with that person. If those factors are present, then it is unlikely that a child's temporary distress will progress to become long term harm.
8. In assessing the magnitude of the risk of harm to the child, we acknowledge that her attachment to the second respondent is a significant consideration. However, in the Forslund article, the authors suggest that courts can place too much emphasis on attachment theory when making decisions about custody and care of children. They make the following observations which we have found useful:

• The child's need for familiar, non-abusive caregivers;
• The value of continuity of good enough care; and
• The benefits of networks of attachment relationships.

b) Attachment is not the same thing as attachment quality. Attachment refers to an affectional bond in which a child is motivated to seek and maintain proximity to, and comfort from, particular familiar persons. Children are born with a predisposition to develop this motivation in relation to significant others who have been sufficiently present and responsive and this is usually their caregivers.[66] The motivation is governed by an attachment behavioural system - when the attachment system is activated (eg by fear) then the child will seek out an attachment figure. Secure attachment relationships are indicated by behaviour that suggests that a child expects the attachment figure will be there in times of need. > > c) Attachment relationships are built over time, through recurrent interactions with caregivers, and depend on the opportunity to develop expectations regarding the attachment figure's accessibility and responsiveness. > > d) Human children are vulnerable and depend on their caregiver's support for a long time, and the capacity to develop attachment relationships appears to be universal in humans. > > e) Children can develop and maintain secure attachment relationships with multiple caregivers simultaneously, if they have sufficient time together and the caregivers respond in ways that provide a safe haven for the child in times of need. > > f) Attachment researchers generally hold the view that humans evolved with the expectation of a (limited) number of attachment relationships with particular, familiar people who can be turned to in times of need. Multiple caregivers and a network of attachment relationships have been found to constitute a protective factor in child development. Each attachment relationship is important, with children gaining benefits from having more than one safe haven. > > g) Children's attachment relationships with all their regular caregivers are important. It is unclear whether more time should be allocated to a particular caregiver early in life to assist with cognitive development. The authors urge practitioners to consider pertinent contextual circumstances in settling arrangements for children and to strive for continuous contact with both caregivers wherever possible. It is also important for a child to transition gradually to spending more time with a caregiver who may previously have had little contact with a child. > > h) While there has been significant research undertaken about attachment and, while that research is useful generally, it has limited sensitivity and specificity for predicting individual children's development or predicting individual children's caregiving needs. However, secure attachment is generally a protective factor in human development. But attachment quality always interacts with other factors conveying risk and protection.

1. Removing a child from a caregiving arrangement which is secure, stable and settled should be done cautiously.

j) There is disagreement between researchers as to the value of attempts to measure the quality of an attachment, but it is agreed that assessments of the caregiver's ability to provide a safe haven should be given greater priority than assessments of child attachment. Attachment measurement instruments tend to be unhelpful when applied to individual cases.

1. In assessing the magnitude of the risk of psychological harm to the child if she is placed with the applicant, we have taken into account the following:

Although Ms Rayment does identify some situations in which the child requires support to manage her emotions in particular circumstances, by and large, there is no disagreement that the child is progressing well and reaching her milestones.

We accept that the child's earlier erratic caring experiences with her mother and step-father must necessarily have had some impact on her. However, it is clear that due to the length of time she has been in a stable, secure and nurturing environment with the second respondent, the impact of those earlier experiences has lessened. In general terms, the child's attachment to her caregiver and her attachment style are healthy.

In her evidence Ms Rayment placed some emphasis on the research about the adverse impact of multiple caregiver separations experienced by a child, and the significant increase, should there be more than one separation for a child. If the child is to be placed with the applicant, then she will have experienced a separation from more than one caregiver. However, in our view this approach does not place adequate emphasis on the particular circumstances of this matter - and in particular, the mitigating factors identified by Ms Fallo which have been described above. We also note Ms Fallo's evidence in the review hearing about the significance of a caregiver who will provide a safe haven.

Therefore, while we accept that the child may be more susceptible to harm arising from a second separation from a caregiver, (due to her previous trauma), we do not consider that it is a high risk, due to the mitigating factors.

On the basis of the evidence of Ms Rayment and Ms Fallo, our views are that the child has developed a healthy attachment style while she has been with the second respondent and it is likely that she has the capacity to develop attachments with multiple caregivers.

The child has a secure attachment with the second respondent. She views her as her primary attachment figure. The child is developing a secondary attachment to the applicant.

Ultimately, our view is that it is unhelpful to compare the child's attachment to the applicant with her attachment to second respondent, as she has spent little time with the applicant in contrast to the amount of time she has spent with the second respondent (due to the Department's restrictions).

d) The quality of the child's relationship with the second respondent and the quality of her relationship with the applicant

Both the second respondent and the applicant are well-qualified to care for the child and their personal circumstances mean that they each have the capacity to do so. Both the second respondent and the applicant have made personal sacrifices so that they are in a position to care for the child. Both are familiar, non-abusive caregivers.

e) The ability of the second respondent and the applicant to provide the child with a safe haven

The child looks to the second respondent to provide her with a safe haven (this is to be expected as she is her primary caregiver and attachment figure). The applicant has the capacity to provide a safe haven for the child and has taken practical steps for this to occur (for example, providing her with her own room - which the child regards as such).

Ms Fallo placed significant emphasis on the mitigating factors as outlined above[67] and those factors include a well-managed transition. During the review hearing, Mr Roder submitted that the Tribunal should be cautious in placing too much weight on the mitigating factors particularly in relation to any transition due to the level of cooperation which would be required between the second respondent and the applicant, and the fact that this may not eventuate.

There are a number of mitigating factors in this matter which include the transition process and the transition process is an important issue. We acknowledge there is a risk about trying to predict how that may occur. Even if it did not occur as Ms Fallo anticipates, our view is that due to the personal characteristics of the second respondent and the applicant, and their commitment to doing what is best for the child, it is likely the transition process would be reasonable.

1. Taking into account all of these considerations, our assessment is that even though there is a risk of psychological harm to the child if she is placed with the applicant, due to the particular circumstances of this case, the risk is relatively low.

What are the risks to the child in not placing her with biological family?

1. The first issue is: do we accept that there is a risk to the child in not placing her with her biological family?
2. The letter of instruction for her report did not ask Ms Rayment to assess the risks to the child if she is not placed in kinship care.[68] Nevertheless, Ms Rayment acknowledges the benefits of kinship care in her report[69]:

[The child] should have been placed in kinship care within the first few months of being removed. The background information clearly indicated that decisions to apply for long term care were made early and that appropriate relatives, including [the applicant], had indicated that they were willing and able to provide long-term care for [the child]. It is also acknowledged that placement in kinship care would have conferred advantages to [the child] in terms of facilitating understanding of, and contact with, extended paternal family.

3. In her oral evidence to the Tribunal Ms Rayment said that there are advantages in placing a child with kinship carers. She said that it would be likely the child would have more contact with their extended family, better knowledge of family traditions, and that children are less likely to require mental health intervention later.
4. In the review hearing, Mr Segal gave evidence that in his experience[70] a child who is placed in kinship care is likely to have less mental health or psychiatric issues when the child is older, because they are less likely to have issues about their identity. He also said that the care is likely to be more stable, particularly in difficult times such as adolescence. He said that the sense of belonging and identity from a placement in kinship care, cannot be overestimated.
5. Ms Fallo made the following statements in her report:[71]

Psychologists...agree that as a general principle, placement in kinship care confers long-term advantages to the child.... > > The aspects of kinship care that would most probably provide significant long-term benefits to the current child, beyond those she would experience in foster care, regard 'continuity of connection'. Kinship care would provide for connection to generations of family traditions, values, and beliefs, that are integral to her family heritage and which are central to emotional well-being across the life-span. The familiarity of kinship care seems to contribute significantly to feelings of security and identity in the longer term.

6. Ms Fallo said that she would have concerns about long term psychological harm for the child if she were not placed with the applicant, because of the loss of an intimate care-giving bond and the loss of a sense of identity. She said that these issues would not be addressed by the child remaining in the care of the second respondent, and she said that placement with biological family will generally be more stable than placement with a non-biological carer. In the hearing, Ms Fallo posed the question: if the child could be placed in kinship care, and the risks of harm in the transition could be adequately managed, then why would you not make the placement? Mr Segal's opinion was essentially the same.
7. In our view, if the child remains placed with the second respondent, she would continue to facilitate contact with the child's biological family, but this cannot be the same experience for the child as it would be if she is placed with the applicant. We consider that placement with her biological family will provide the child with long term advantages arising from her connection with her family.
8. We have concluded that there is a risk to the child by not placing her with her family member. In our assessment, at times in her life when the child is questioning her identity - such as adolescence - she may become confused and she may suffer feelings of rejection at not being placed with her biological family. She may also feel angry that such a placement did not occur when her biological family had offered for her to be placed with them. Our view is that she will be more psychologically secure in a placement with her biological family.
9. We have considered Ms Rayment's opinion which she expressed in the hearing that, for the child at the moment, the second respondent is her psychological mother, and that is the most important consideration due to the likelihood of harm if she is placed with the applicant. We accept that the child considers the second respondent to be her mother at present. There is no dispute about that. However, this decision is made not only taking into account the circumstances now, but taking into account the child's long term situation. In the longer term, she will come to know that the second respondent is not her biological mother, and the issue for us is: the weight to be placed on the risk of harm to the child in placing her with the applicant, as opposed to the risks long term in not placing her with her biological family.

1. Both Mr McCloud and Mr Crouch submitted that the risks associated with not placing the child with her biological family, amounted to a risk of harm. Mr Roder said that the risks did not amount to a risk of harm.
2. It is acknowledged that there is a lack of research in this area.[72]
3. It is clear from their evidence, that Mr Segal and Ms Fallo both considered that the risks in not placing a child with their biological family, amount to a risk of harm. They referred to their anecdotal experience in support of those views. We place weight on Mr Segal's evidence in this regard in particular, due to his significant experience in the area.
4. Where the issue concerns the placement of a child with a family of a different culture, then it is clearer that there may be a risk of harm. In addition, if the child is Aboriginal, then the Tribunal must consider specific placement principles[73] (which do not apply here). In the matter of WWZ & Anor v The Department for Child Protection[74] _(_which involved the placement of an Aboriginal child), the Tribunal referred to the phrase "cultural harm" and noted that that phrase is not used in the CYP(S) Act but that a reasonable meaning for it is -

a form of psychological harm caused by a deprivation from the opportunity to live within a culture that one's biological family members practise, and may manifest in (amongst other things) confusion, depression, loss of identify and loss of self-esteem.

5. Although the child's placement with the second respondent is not a placement with a person of a different culture within the generally accepted meaning of that term; nevertheless, as Ms Rayment acknowledged in the hearing, a placement outside the biological family means the child cannot have the same experience of their biological family as they would if they were placed with a member of that family. A placement within the biological family would provide a child with knowledge of family traditions and conventions, family history, values, attitudes and ideas. Even though this may not be quite as clear as a situation such as that in WWZ, in our view, a placement which is not with a biological family member may well still manifest in the same problems arising later in life: confusion, depression, loss of identity and loss of self-esteem.
6. We have considered whether this risk is a risk of (psychological) harm. We consider that it is likely that it is a risk of psychological harm for the reasons outlined above. But, even if we are wrong about that, our view is that the risks would need to be taken into account in any event, under the CYP(S) Act, for reasons we will discuss further below.

How do we weigh the risk of harm to the child if she is placed with the applicant as opposed to the risks to the child if she is not placed with her biological family?

1. Our first consideration must be the overriding consideration contained in section 7 CYP(S) Act, which is to ensure that children and young people are protected from harm. In summary, on the basis of the paramount consideration of ensuring the child is protected from harm, our view is that there is a risk of harm in placing the child with the applicant, but, due to the mitigating circumstances of this case, that risk is relatively low. On the other hand, we consider there is also a risk in not placing the child with her biological family, and on a long-term basis, in our view this has the potential to cause her harm.
2. We must also apply the intervention principles contained in section 10 CYP(S) Act and the placement principles contained in section 11 CYP(S) Act. In summary those principles which are most relevant to this matter are:
   • Decisions should be made in a timely manner;
   • A child's views should be sought (if that is appropriate);
   • Account should be taken of the child's culture, disability, language, religion (and the culture, disability, language and religion of the person with whom they are placed).
   • All children should be placed:
     • in an environment which is safe, nurturing, stable and secure;
     • with a person with whom they have an existing relationship;
     • approved carers should be involved in the decision.
3. In weighing the considerations of the intervention principles, and the placement principles, we consider this matter is finely balanced. Both the second respondent and the applicant meet the placement criteria. Each of them can provide the child with an environment which is safe, nurturing, stable and secure; each of them is well qualified to be a carer for the child; the personal circumstances of each of them makes either the second respondent or the applicant suitable as a carer, and both of them have an existing relationship with the child.
4. We have also considered the objectives stated in section 8 CYP(S) Act being the need for:
   • the child to be heard and to have their views considered;
   • love and attachment;
   • self-esteem;
   • the child to achieve their full potential.

On the basis of the assessments of Ms Fallo and Mr Segal, we consider it more likely that the child will have self-esteem and achieve her full potential if she is placed with biological family.

1. We also note section 8(3) CYP(S) Act, which states that it is desirable that the connection of children and young people with their biological family be maintained. We have noted above that in our view even if the second respondent continues to maintain a connection with the child's biological family, it cannot be the same as the experience for the child in being placed with her biological family.
2. We have referred to the Department's Permanency Planning Practice Paper,[75] in particular, we note the following extract:

Children and young people have better outcomes when they have a strong sense of identity, belonging and connectedness to culture. When children and young people are harmed and/or separated from their family and culture, their sense of identity can be impacted and their knowledge of and connection to culture can be damaged, which can lead to other negative outcomes, including poor mental health. Permanency planning aims to promote stability not just in a child or young person's care arrangements, but also in terms of their sense of belonging and their connectedness to family and community.

3. As stated above, we have concluded that there is a risk of harm for the child if she is placed with the applicant due to her strong attachment to the second respondent, and the impact of the disruption to that attachment. In our view, there is also a risk of harm for the child if she is not placed with her biological family.
4. As we have also noted above, this decision requires a long-term assessment of the magnitude of the risks to the child. We have assessed the risk of harm in placing the child with the applicant as relatively low due to the particular circumstances of this case.
5. We have placed weight on the assessments of Ms Fallo and Mr Segal about the likelihood of long-term harm if the child is not placed with her biological family. Ms Rayment's view was that, if the Department had acted in a timely manner, the correct placement decision would have been to place the child with the applicant.
6. The difficulty of reaching a decision in this matter is evident from the divided opinions within the Department itself.[76]
7. We also echo the sentiments of the reviewer who said:[77]

The Reviewer acknowledges that [it] is unfortunate that kinship carer options for [the child] were not pursued in a timelier manner. This has indeed resulted in [the child] forming an attachment relationship with her carer with whom she has now lived with for two years, the vast majority of her life. Any decision to move her from her placement cannot be undertaken lightly and would require a thorough assessment and consideration of the impact of moving [the child] from her current placement and the ability of [the applicant] to meet her (likely complex) needs both in the short and long term.

8. On balance, we have decided that the risks for the child if she is not placed with her biological family, outweigh the risk of harm if her attachment to the second respondent is disrupted by a placement with the applicant. Therefore we have concluded that the correct and preferable decision is to place this child with the applicant.

1. We acknowledge that the practicalities of the transition process will be dealt with as a case management issue and that aspect of the matter is beyond the scope of this order. However, we make the following observations at least for the parties to reflect on, and possibly for their guidance.
2. The Forslund article makes it clear that it is healthy for a child to have multiple attachments. The article also suggests that in the area of care and custody disputes, caregivers should strive to allow a child sufficient time to become attached to each of the important persons in their life, and caregivers should work together to ensure fair long-term arrangements which are in the best interests of the child. In other words, a collaborative approach is encouraged, which does not result in a "winner" and a "loser".
3. This matter is exceptional. As stated above, both the second respondent and the applicant are extremely well placed to be a carer for the child in terms of their qualifications, experience, personal situations and commitment to the child. We have been impressed by the manner in which both the second respondent and the applicant have conducted themselves in this matter, in what must have been difficult and emotional circumstances for them. From the Book of Documents it is clear that they have cooperated with one another and with the Department. We hope that this level of cooperation and collaboration can be sustained.

An opportunity to improve on the processes of the Department

1. We make some final observations about the Departmental processes in this matter. In doing so, we acknowledge Mr Segal's comments in the review hearing that these matters are complex to manage, due to the multiple interactions with interested parties within the Department and also externally, and because of their fluid nature. However, we take this opportunity to raise a number of issues which we think could have been handled better by the Department. We do so not to criticise the Department, but as an opportunity for the Department to reflect on the improvement of their procedures.
2. Scoping

It appears from the Book of Documents (and also the applicant's mother's evidence in the review hearing), that the Department did not properly scope for family members who might have been prepared to be a carer for the child soon after she had been removed from the care of her mother and stepfather.[78] What has occurred in this matter is a good illustration of why it is important for that process to occur promptly and to be undertaken as thoroughly as possible.

The assessment of the applicant as a kinship carer appears to have been plagued by delays and confusion. Although she initially contacted the Department in August 2020 expressing a wish to be the carer for the child, she was not approved as a kinship carer until 30 May 2022. At one point the Department advised the applicant that it was too difficult to assess her while she was in Victoria. The Department was not entitled to do this. The Department did not advise the applicant of her rights of review.[79]

It is not disputed that the applicant was advised (by a person within the Department) that, if she moved to South Australia, then the child would be placed with her. In the review hearing, the second respondent said that she had been told that the child would be placed with her on a long-term basis. This advice created expectations for each of the second respondent and the applicant and clearly both sets of expectations could not eventuate.

1. Inadequate documentation about critical decisions and the reasons for those decisions

In the review hearing, Mr Crouch said that the Tribunal should not necessarily assume that simply because a particular decision was not recorded in the documents provided to the Tribunal, that it was not properly documented. Mr Crouch submitted that this was not relevant to the Tribunal's decision. The lack of a written record of the decision to place the child with the applicant, and the reasons for that decision, are relevant to our decision, and there should have been a proper record of that decision and the reasons for it. We acknowledge that sometimes it may be difficult for staff to record everything happening on a file, when there are multiple interactions occurring at a fast pace. However, decisions of this kind are critical and should be properly recorded.

1. Lack of attention to the CYP(S) Act requirements and the requirements of the Practice Papers

In the review hearing, Mr Roder submitted that apparently the Department did not properly consider the relevant provisions in the CYP(S) Act and the Practice Papers in their decisions about the child. We acknowledge that all placement decisions should not necessarily require the sort of detailed analysis that was included for example, in the Internal Review decision; but all placement decisions should involve a consideration of those factors.

1. The decision under review is set aside and the following decision is substituted instead:

(1) The principles of intervention are as follows:

(a) decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability);

(b) if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances;

(c) account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed;

(d) in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate.

(2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention.

(3) However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7.

(a) all children and young people who have been removed from the care of a person under this Act should be placed in a safe, nurturing, stable and secure environment;

(b) the preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship;

(c) approved carers are entitled to be, and should be, involved in decision-making relating to children and young people in their care.

(2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the placement principles.

(3) However, this section and the placement principles do not displace, and cannot be used to justify the displacement of, section 7.

(4) To avoid doubt, the requirement under this section applies to the Court.

Extracts from the Department's Permanency Planning Practice Paper

Permanency planning is a timely, goal-directed approach to case planning, which aims to promote safety, stability and a sense of belonging for children and young people. Permanency planning allows DCP practitioners to develop a clear plan for a child or young person's future from the first contact with a family.

Permanency planning focusses on providing children and young people with safe, stable and ongoing care arrangements, whether this be with their family of origin or in care. That said, permanency planning involves more than just determining where a child or young person will live; it also ensures children and young people have ongoing and stable relationships, a healthy sense of self and identity, and a sense of belonging and connectedness to their family, culture and community.

It is always DCP's first priority for a child or young person to be cared for by their birth family, or to work towards reunification when this is assessed to be viable after a child or young person has been placed in care. However, this is not always achievable, and when a child or young person needs to be placed in long-term care to ensure their safety, active efforts must be taken to secure permanence and ongoing connections to family, culture and community.

1. [1] This is the collection of documents provided to the Tribunal by the Department, as required by section 35 SACAT Act being the evidence and information available to the original decision-maker concerning the decision under review.

[2] Pursuant to section 60(2)(h) SACAT Act.

[3] Pursuant to section 60(2)(i) SACAT Act.

[5] The Department made the decision in the internal review, on 13 April 2023.

[6] The decision of which the internal review was sought, was made on 7 November 2022.

1. [8] It was not disputed that the person who made the decision had delegated powers only to remove a child to ensure the immediate safety of a child or young person, and the decision to place the chid in the care of the applicant was not made in such circumstances.
2. [9] Her Honour referred to the decision of GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75 in support of this view.

[12] Pages 18 and 45 Book of Documents.

[13] That decision was made with the consent of the child's mother and her partner.

1. [14] Page 29 of the Book of Documents - the applicant stated that this was the day on which she found out that QCJ had been removed from her mother's care.

[16] See: the Practice Lead Review Report of 7 June 2022.

[17] Page 147 Book of Documents paragraph 5.22.

[18] Page 147 Book of Documents paragraph 5.24.

[21] Pages 147 and 250 Book of Documents.

[22] Report at pages 142 - 151 Book of Documents.

[26] Pages 220 - 224 Book of Documents.

[28] Pages 261 - 266 Book of Documents.

[30] Pages 363 - 380 Book of Documents.

[31] Pages 433 - 444 Book of Documents.

1. [32] In his final submissions, Mr McCloud said that he commended and applauded the second respondent for what she has done for QCJ.

[33] As stated in her affidavit of 28 September 2023 and in her oral evidence at the review hearing.

[34] 19 August 2020 - page 29 Book of Documents.

[35] See for example page 45, pages 145 - 147 Book of Documents.

1. [36] But the child was not placed with them - see paragraph 5.37 page 148 Book of Documents and paragraph 5.40 page 149 Book of Documents.
2. [37] They requested for the child to stay with them overnight on a fortnightly basis which was initially approved. However, approval was subsequently withdrawn pending the outcome of the internal review and Tribunal process - see page 330 Book of Documents.
3. [38] On 1 October 2020, the child's maternal grandmother contacted the Department to say that she wanted to care for the child but she acknowledged that it would take some time for her to relocate from Victoria. Two other family members had contacted the Department expressing an interest to be the carer for the child, but they were either unable to be contacted for an assessment to be made, or they were regarded as unsuitable - pages 144 - 146 Book of Documents.
4. [39] In response to our concerns in relation to the apparent lack of information concerning some decisions of the Department, Mr Crouch said that the Tribunal should not necessarily take the view that those decisions had not been properly considered and documented - the lack of information may simply be due to decisions about what was to be included in the Book of Documents.
5. [40] At pages 433 - 442 Book of Documents - the Internal Review was conducted at the request of the second respondent, following the decision to place the child with the applicant, and so the decision under review was the decision to place the child with the applicant.
6. [41] Page 441 Book of Documents.
7. [42] Page 9 Book of Documents.
8. [43] Page 441 Book of Documents.

[44] As stated in her affidavit of 4 October 2023.

[45] Page 278 Book of Documents - these included febrile seizures and croup.

1. [46] For example, toilet training, dressing independently, tendency to fall over, dislike of some food, a preference not to wear shoes and exploring new items with her mouth - page 199 Book of Documents; see also page 278 Book of Documents and page 328 Book of Documents.

[47] See for example, page 279 Book of Documents and also page 328 Book of Documents.

[49] See for example page 334 Book of Documents.

[51] Pages 449 - 478 Book of Documents - see Annexure B for some extracts from the latter practice paper.

[52] At page 436 Book of Documents but see also page 217 Book of Documents.

[55] See: Breeding v Registrar of Firearms [2017] SACAT 40.

[56] See: page 200 of 479 where the decision is mentioned.

1. [57]Pages 433 - 442 Book of Documents.

[58] See: WWZ and Anor v The Department for Child Protection [2020] SACAT 111.

1. [59] Member Croser was a solicitor with the Legal Services Commission from 1979 - 2015. From January 1981 to 2015 Member Croser was the Senior Youth and Children's Solicitor at the Adelaide Children's Court (now the Youth Court) and from 1983 until 2015 that work became exclusively the representation of every child appearing before the court in Child Protection proceedings.

[60] The Department for Child Protection.

[62] At page 379 of the Book of Documents.

[63] (1988) 166 CLR 69.

[64] [2018] FCA 450.

1. [66] A caregiver does not necessarily need to be the person with whom a child is living, but may be a person who is providing care on a short term basis, for example, a child care worker.

[72] This is acknowledged in the Forslund paper at para 6.1.

[73] Aboriginal and Torres Strait Islander Placement Principles.

[74] [2020] SACAT 111 at paras 106 - 112 - without footnotes.

1. [75] Page 473 Book of Documents.
2. [76] Mr Segal acknowledged that in this matter there was a division of opinion within the Department. The psychologists within the Psychological Services section of the Department were of the view that the child should remain with the second respondent due to the risk of psychological harm to her if she were moved. But the social workers (including himself), considered that the benefits of moving the child to the care of a family member, outweighed the risks of moving her, and she should be placed in the care of the applicant - see also page 330 Book of Documents.
3. [77] Review by Nick Ratsch 7 June 2022 at page 151 Book of Documents.
4. [78] See: for example, page 145 Book of Documents.