The applicants and the Department submitted that in applying the Act and policies, and balancing harm concerns, the child should be placed with the applicants. The second and third respondents submitted that the child should remain with them as kinship placements should not be prioritised over the safety of the child, and that the child would suffer harm if removed from their care.

Held, affirming the decision under review (reversing the Department's internal review):

• The child should be placed with the applicants. While both placements would provide love and attachment, a placement with a biological family is in the child's best interests and will foster self-identity and self-esteem.
• The Tribunal has jurisdiction to receive an application by a person aggrieved. The applicants are aggrieved by the decision as it stands reversed, thus the Tribunal has jurisdiction to review the decision.
• The delegate on internal review misunderstood their role and did not apply the relevant policies, thus their decision is given no weight.
• The decision to place a child with kinship carers is a placement decision which then necessitates removal from a current placement; it is not a removal decision.
• The Act and the Department's policies clearly state that kinship placements are preferred, and this preference of kinship care is supported by psychological evidence.
• A placement decision requires a balancing of the potential short-term and long-term harm in light of the Act's objectives.

Administrative Review - Children and Young People (Safety) Act 2017 - Children and young people in Chief Executive's custody or Guardianship - Relocation of a child - Harm considerations

Administrative Review - Children and Young People (Safety) Act 2017 - Children and young people in Chief Executive's custody or Guardianship - Reviewable decisions - Removal decisions - Placement decisions

Administrative Tribunals - Administrative Review - Weight given to decision under review

Administrative Tribunals - Procedure - Jurisdiction - Generally

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

South Australian Civil and Administrative Tribunal Act 2013 s 35

Children and Young People (Safety) Regulations 2017 reg 40A

Ms Nikoloff, Crown Solicitor's Office, appeared for the first respondent

The second and third respondents appeared in person

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 decision is a review of a decision made by a delegate of the Chief Executive of the Department for Child Protection (the Department) in relation to the child, ZMB.
2. The child was born on 22 February 2021. She was born premature and required a stay in hospital following her birth. During her time in hospital, the child was removed from the care of her mother and was placed in a short-term foster placement.
3. BUX and NZY are approved foster carers, supported by Anglicare. On 17 June 2021, the child was placed in the care of BUX and NZY.
4. At the time of the child's birth, her paternity was unknown. Subsequent DNA testing confirmed her biological father to be ENT.
5. OXF is the biological mother of ENT. On 28 June 2021, OXF contacted the Department and advised that she had been notified of the paternity test results and that she wished to care for the child.
6. On 12 October 2021, an order was made placing the child under the guardianship of the Chief Executive until she turns 18 years of age.
7. On 24 November 2021, Mr Ribar, a delegate of the Chief Executive, made a decision to place the child with OXF and her husband UYY. UYY is not the biological father of ENT, but has known ENT since he was a child, having been in a long-term relationship with OXF for approximately 35 years.
8. BUX and NZY sought internal review of the decision to place the child with UYY and OXF.
9. The powers of the reviewer on internal review are to confirm, vary or reverse the decision under review. On 24 January 2022 Mr Vajdic, a delegate of the Chief Executive, reversed the decision on internal review.
10. UYY and OXF were aggrieved by that outcome and subsequently applied to the Tribunal for review of the decision.

Legislation - consideration of the Children and Young People (Safety) Act 2017 (SA)

1. The decision subject of review before the Tribunal was a decision made pursuant to s 84 of the Children and Young People (Safety) Act 2017 (SA) (the Act). Section 84 provides as follows:

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

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

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

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

....

(3) In exercising a power under this section, the Chief Executive -

(a) must have regard to the principles of intervention, the placement principles and, if relevant, the Aboriginal and Torres Strait Islander Child Placement Principle;

1. The principles of intervention are found in s 10 of the Act and include a requirement that actions be taken in a timely manner, and in the case of young children actions to be taken as early as possible to promote permanence and stability.[1]
2. The placement principles are found in s 11 of the Act and provide that all children who have been removed from the care of a person should be placed in a safe, nurturing, stable and secure environment.[2] The placement principles provide that the preferred option in relation to such placement of a child is to place the child with a person with whom they have an existing relationship.[3]
3. Neither the principles of intervention nor the placement principles displace s 7 of the Act, which provides as follows:

7 - Safety of children and young people paramount > > 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.

4. A reference to harm is defined under the Act to be a reference to physical or psychological harm. Psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life.[4]
5. Section 8 of the Act requires that other needs of children be considered in the administration, operation and enforcement of the Act. Section 8 provides as follows:

8 - Other needs of children and young people > > (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.

Legislation - review before the Tribunal - jurisdictional issue

1. A person who is aggrieved by a decision of the Chief Executive is entitled to review of that decision under s 157 of the Act (an internal review). In this matter, BUX and NZY were aggrieved by the decision of the Chief Executive's delegate, Mr Ribar, and applied for internal review of the decision. On internal review, the Chief Executive's delegate, Mr Vajdic, reversed the decision.
2. The Tribunal is conferred with jurisdiction to deal with matters consisting of the review of certain decisions (including placement decisions) made under s 84 of the Act.[5] However, the decisions only become 'reviewable decisions' by the Tribunal once an internal review under s 157 has been conducted in respect of the decision. In this matter, the decision by delegate Mr Ribar has become a 'reviewable decision' because a review of the decision was conducted by delegate Mr Vajdic.
3. An application for review of a reviewable decision may be made to the Tribunal by a person prescribed by the Children and Young People (Safety) Regulations 2017 (the Regulations).[6]
4. The Regulations prescribe the following persons:

(a) the applicant in respect of an internal review of the relevant reviewable decision;

...

(c) any other person aggrieved by the relevant reviewable decision and who, in the opinion of the South Australian Civil and Administrative Tribunal, has sufficient interest in the matter.'[7]

1. It is clear from the Act and the Regulations that the applicants for internal review (in this matter, BUX and NZY) and any other persons aggrieved by the relevant reviewable decision (in this matter, UYY and OXF) have standing to bring a review to SACAT.
2. In this matter, the Tribunal is reviewing the reviewable placement decision made by the Chief Executive's delegate, Mr Ribar (as reversed on internal review by Mr Vajdic).
3. UYY and OXF are aggrieved by the current reviewable decision as it stands i.e., the placement decision as reversed. As grandparents of the child, they have sufficient interest in the matter and standing to bring the review.
4. The Tribunal is satisfied that UYY and OXF may make application to the Tribunal for a review of the reviewable decision and that the Tribunal has the jurisdiction to entertain the review. The Act and Regulations clearly contemplate such a situation.
5. In the circumstances where an original decision is reversed on internal review it will clearly be relevant for the Tribunal to consider the reasons for the reviewable decision at both stages of the process.

1. The Tribunal was provided with the documents that were before the original decision-maker, Mr Ribar, the documents that were before the decision-maker on review, Mr Vajdic, and other relevant documents. These constitute the Book of Documents.[8]
2. In the exercise of its discretion, the Tribunal also received additional evidence in the form of affidavits from the following people: OXF, UYY, NZY, BUX, Ms Jorat, Mr Ribar and Mr McCarron.
3. Ms Jorat is a social worker, employed by the Department as a senior practitioner, and has been part of the case management team for the child.
4. Mr Ribar is a social worker, employed by the Department as a supervisor. In addition to being the original decision maker, he also led the case management team for the child.
5. Mr McCarron is employed by the Department as a manager and attended a meeting regarding the child.
6. The Tribunal heard oral evidence from Mr Ribar, Ms Jorat, Mr Vajdic, UYY, OXF, BUX and NZY.
7. Prior to the full hearing of this matter, the Tribunal noted that there had been no psychological assessment of the child. The Tribunal requested a psychological assessment from an independent psychologist, Ms Webster. Ms Webster provided a report to the Tribunal and gave evidence at the hearing.

The child's contact with UYY and OXF and the kinship approval process

1. On 7 June 2021, DNA testing revealed that ENT was the biological father of the child.[9]
2. When OXF was advised that she was the paternal grandmother of the child, she contacted the Department to express her interest in caring for the child. A case note dated 28 June 2021 states 'phone call from [OXF]...asking to see [ZMB]...[OXF] wants to care for [ZMB].'[10]
3. On 13 July 2021, OXF commenced weekly visits with the child.[11] The Tribunal understands that these weekly visits were continuing as at the date of the hearing. The Tribunal accepts that these visits have required organisation and effort from all involved as UYY and OXF live more than 100 kilometres away from BUX and NZY.
4. In her evidence to the Tribunal, OXF spoke of her love and adoration for the child. She stated that she has a loving bond with the child and that the child gives her hugs and kisses. She informed the Tribunal that she lives in a small country town and sees the child's half-siblings several times each week as she cares for them after school.
5. A case note created by Mr Ribar on 15 November 2021, regarding a Departmental consultation relating to long-term placement for the child, stated:

'No concerns raised with grandmother's interactions with the child during family contact. A relationship between the grandmother and the foster parents has not been established. Contact between [ZMB] and grandmother facilitated by DCP... kinship care supportive of [ZMB] moving to grandmother's care long-term, in lieu of the fact that [OXF] is family, and placing children with family where possible is in line with legislation. Supervisor to follow up status of assessment with carer assessment review unit. If carer assessment review unit endorses placement, DCP / Anglicare to meet with foster parents informing them of decision and their role in the transition, if indeed they are prepared to be part of one.' [12]

6. The Tribunal heard a considerable amount of evidence regarding communication between BUX and NZY and the Department/Anglicare, particularly in relation to the issue of UYY and OXF being considered as kinship carers.
7. Emails and case notes were referenced that show both the Department and Anglicare advising BUX and NZY, from July 2021 onwards (only a month after placement with BUX and NZY), that the Department were considering the possibility of the child moving to a family placement.
8. An email from the Department to NZY dated 14 July 2021 states 'As I mentioned on the phone that [ZMB] has the right to know and to maintain family connections and to grow with her family if a safe kinship placement is identified. DCP are obligated to explore kinship care options.'[13]
9. A case note created 7 September 2021 by Departmental staff member Ms Zhang states 'update provided... in relation to grandmother's application is moving forward and expressed concerns... current carers, [NZY] and [BUX]'s high hope of providing long-term care.'[14]
10. A meeting was held on 14 October 2021 at a café at Tea Tree Plaza. A case note created that day by Departmental staff member Ms Roberts states

'case manager... arranged for family contact between [ZMB] and paternal grandmother [OXF] and her partner [UYY] to be in the community and facilitated between [OXF] and [ZMB]'s current carers [NZY] and [BUX]. Case manager agreed to attend the first contact to introduce everyone... [NZY] handed [ZMB] over to [OXF]. [ZMB] became upset and [OXF] and [NZY] reassured [ZMB]... [NZY] commented to [OXF] that they just love [ZMB] so much. [OXF] stated it will be a hard transition when she comes to live with her and [UYY]. [NZY] began to try (*cry) and soon excused herself.'

11. BUX gave evidence that NZY had been upset due to OXF 'snatching' the child out of NZY's arms. BUX and NZY both gave evidence that any comments made by UYY and OXF related to them being grandparents only and not in relation to them caring for the child.
12. The Tribunal accepts the facts as recorded in the case note by Ms Roberts relating to the meeting at the café at Tea Tree Plaza. The note was made contemporaneously with the event. The Tribunal does not accept the evidence of BUX that OXF snatched the child. The Tribunal accepts that NZY became upset after OXF referenced the child living with her and UYY.
13. BUX gave evidence that he did not know that UYY and OXF were undergoing carer approval until he was notified, on 1 December 2021, of the decision made by Mr Ribar for placement with UYY and OXF. In light of the documentary evidence, the Tribunal cannot accept the evidence of BUX in this regard.
14. On 19 November 2021, UYY and OXF were approved as carers.[15] Mr Ribar gave evidence that, at the time UYY and OXF sought to be approved as carers, the Departmental carer assessment team had a large workload and a decision was made to refer the assessment to an external assessor to expedite the process.
15. BUX questioned the assessment process. He expressed concern that the assessment was not thorough and he questioned whether sufficient weight had been given to safety concerns. The Tribunal, on numerous occasions, had to remind BUX and NZY that the decision before the Tribunal was not a review of UYY and OXF's carer approval.
16. The Tribunal holds no concerns that the Department used an external assessor to undertake the assessment and notes this is consistent with the s 10 principles of intervention, requiring actions to be taken in a timely manner. There is nothing before the Tribunal to suggest any concerns with the approval process and the Tribunal does not accept BUX's submissions in this regard.
17. BUX and NZY both submitted that UYY and OXF may be motivated to care for the child to receive carer payments - a financial motive. There was no evidence to support this assertion and the Tribunal does not accept this submission.

Care concerns raised by BUX and NZY - food and water, distress at access

1. It was evident to the Tribunal how deeply BUX and NZY care for the child. They refer to her as their daughter and consider themselves her parents. There has been no suggestion that BUX and NZY have not provided a safe and loving environment for the child to date. Her immediate care needs have been met. In the time that they have cared for her, she has achieved many important milestones.
2. BUX and NZY raised several concerns with the Department regarding the access visits with UYY and OXF. BUX and NZY gave evidence of the child being distressed following access visits over many months. BUX and NZY expressed great concern that the child had not been fed at access visits for 16 weeks. BUX stated that the child had returned distressed as she had not been fed.
3. An email sent by the Department to Anglicare dated 19 October 2021 states:

'It certainly would be an unsettled time for [ZMB], being transported such long distances by strangers and then being greeted by more strangers in the DCP office before being handed over to [OXF]. In an attempt to eliminate some of this stress for [ZMB], I had hoped that family-based contact without the Department involved would have worked well, unfortunately it did not.'[16]

4. Ms Jorat and Mr Ribar both gave evidence that they never held any concerns regarding the child's access with OXF. Ms Jorat and Mr Ribar gave evidence that UYY and OXF had been compliant with all Departmental requests.
5. Mr Ribar stated that he had observed interactions between the child and OXF and that he saw 'both parties light up'. He gave evidence that he received regular positive feedback from case workers about the relationship between OXF and the child. He gave evidence that any periods where the child had been unsettled at access visits were few and far between.
6. Ms Jorat described OXF as being 'very child focused' and 'nurturing'. Ms Jorat stated that there was a period where no parties asked about food. Ms Jorat stated that sometimes carers provide food for access and that she assumed that the child was being fed before and after access by BUX and NZY and did not require feeding during access. Ms Jorat stated that, once BUX and NZY raised food as an issue, she ensured OXF provided food to the child.
7. When the Tribunal questioned NZY on why she hadn't raised the issue of food at an earlier stage - given their evidence that the child had been distressed for 16 weeks - NZY was unable to clearly answer and stated she may have contacted the Department during that time. At no time did BUX and NZY consider that they could have provided food for the child - their clear submission was that the Department and/or OXF had neglected the child by failing to provide food.
8. During the course of his questioning of Mr Ribar, BUX submitted that 'DCP are not in a position to make the best decision for [ZMB]'. During the course of his questioning of Ms Jorat, BUX stated 'she's not a credible witness'.
9. The Tribunal accepts the evidence of Ms Jorat and Mr Ribar. The Tribunal is satisfied that there has been no cause for concern in relation to the access visits between OXF and the child. The Tribunal accepts that OXF and the child have formed a loving relationship through their weekly access visits over the last 12 months.

Care concern raised by BUX and NZY - sedation at access

1. NZY spoke of two access visits in April 2022 where the child returned with a flat affect.
2. She stated that she had taken the child to the doctor on the second occasion and that a drug test had been performed on the child (a urine sample being taken) on grounds that the child may have been sedated by OXF. No abnormalities were detected.
3. When questioned by the Tribunal on why the doctor would consider the child had been sedated, NZY was unable to clearly answer. NZY denied requesting a drug test.
4. BUX admitted in his evidence that he was concerned that the child may have been sedated when she was taken to the doctor. He stated that they did not tell the doctor to do the testing and, further, that the doctor advised them that nothing would show up in the results. BUX's evidence was that the doctor had performed an unnecessary test without their consent.
5. A case note, created by Mr Ribar on 29 April 2022, stated that he received a phone call:

'from Dr Edge informing me that [NZY] presented to the clinic with [ZMB] stating that following the past 2 access, [ZMB] has presented "...differently" and "...abnormal". Dr Edge went on to say that NZY expressed concern that the child may be being drugged by her grandmother during access. (Note - both accesses were supervised by DCP, DCP have no concerns with regards to the grandmother). Dr Edge stated that a urine sample was taken - they came back normal.'[17]

6. A case note, created by Ms Jorat on 29 April 2022, states 'DCP supervisor and worker updated Paul re...took [ZMB] to the GP and got a urine drug test yesterday, suspecting grandmother is sedating [ZMB] via her milk at family contacts, because [NZY] observed her to be flat and numb after access.'[18]
7. The case notes were created contemporaneously by Departmental staff. The Tribunal accepts that they are an accurate record. The Tribunal does not accept BUX and NZY's evidence on this issue.
8. The Tribunal is satisfied that BUX and NZY took the child to the doctor and raised concern that the child had been sedated by OXF. The Tribunal considers that BUX and NZY either requested, or at least consented, to a drug test being performed. The Tribunal does not accept that a doctor would perform a test without purpose.
9. The Tribunal considers the concern held by BUX and NZY that OXF may have sedated the child to be completely unfounded.
10. The Tribunal heard evidence that, as a result of the concern raised by BUX and NZY regarding the child being sedated and the resulting drug test, the Department and OXF decided to relocate the weekly access visits from the Norwood area to the Blair Athol Department office to ensure that access was monitored.
11. Ms Jorat made it clear in her evidence that the monitoring was not because the Department considered OXF needed to be supervised, it was to safeguard against any further concerns being raised in respect of OXF.
12. Mr Ribar stated in his evidence that given BUX and NZY's view that OXF had sedated the child, the Department held concern about the child's future interaction with UYY and OXF and her extended biological family if she remained in the care of BUX and NZY. BUX's response to this concern was 'What makes you think we'd happily hand over [ZMB]?'
13. The Tribunal heard evidence that prior to the decision to relocate access to the Blair Athol Department office, NZY had driven the child to Norwood to minimise their time apart and any separation anxiety. The Tribunal heard evidence that following the relocation of the access, BUX and NZY were no longer willing to drive the child to the access visits. They were willing to drive the child nearby to Mt Barker, but no further.

Care concerns raised by BUX and NZY - safety of ZMB in the care of UYY and OXF

1. BUX and NZY expressed concern about the child's safety in the care of UYY and OXF. At times in their evidence, they submitted that their concern was not so much in relation to UYY and OXF, but in relation to their extended family.
2. In the documents before the Tribunal, there are references to past incidents of domestic violence, gunshot wounds and drugs.[19]
3. The Tribunal heard evidence that there is a non-contact determination in place made by the Department in respect of ENT. BUX and NZY fear that the child may come to harm as a result of ENT.
4. The Tribunal heard evidence from Ms Jorat and Mr Ribar that these safety concerns had been considered when UYY and OXF were assessed for carer approval. The Tribunal heard evidence that, as UYY and OXF had been approved as carers, the Department held no concerns regarding their ability to provide a safe environment for the child.
5. The Tribunal heard evidence from both UYY and OXF of their strategies to keep the child safe in the event that ENT should attend at their premises without notice.
6. The Tribunal accepts that the carer assessment completed in respect of UYY and OXF extends to the home environment and has considered potential safety risks.
7. UYY and OXF have been approved as carers for the child. As a result of this approval and taking into account the oral evidence of UYY and OXF, the Tribunal does not accept the submissions made by BUX and NZY that there are safety risks to the child if she were to live with UYY and OXF.

1. Ms Webster is a psychologist, self-employed in private practice. She has a Bachelor of Psychology (Honours) and a Masters in Clinical Psychology.
2. Ms Webster was requested by the Tribunal to provide an opinion regarding the child's wellbeing, her current and future attachment relationships and her long-term welfare.
3. In the course of preparing her report to the Tribunal, Ms Webster met with Mr Ribar and Ms Jorat. Ms Webster also met with UYY and OXF, and on a subsequent occasion, observed OXF with the child. Ms Webster met with BUX and NZY and observed the child in their care.
4. In her report to the Tribunal, Ms Webster describes attachment as the psychological bond that initially forms between an infant and their caregiver. Ms Webster states that a secure attachment relationship is developed when a caregiver is consistently available to meet the infant's care needs, responding to their care needs sensitively and effectively. Ms Webster states that, while attachment theory focus on the relationship between an infant and their primary caregiver, it is accepted that children can form multiple attachment relationships, such as with extended family members.
5. Ms Webster states that there are different stages of attachment and that, from eight months through to three years of age, a child is in the 'active attachment' stage where they are able to demonstrate a clear preference for their primary caregiver. The Tribunal notes that the child is currently 16 months old and in the active attachment stage of development.
6. Ms Webster states that a child who has successfully formed a secure attachment is able to go on to form other secure attachments.
7. From her observation of the child with BUX and NZY, Ms Webster formed the view that the child was actively forming a secure attachment with BUX and NZY.
8. From her observation of the child with OXF, Ms Webster formed the view that the child had an existing and comfortable relationship with OXF. Ms Webster noted that the child showed wariness toward herself and cuddled into OXF for comfort.
9. Ms Webster states:

'Should [ZMB] be separated from the [BUX and NZY] she will likely experience a grief response, but she will also commence the process of strengthening her attachment relationship with her new caregivers...If [UYY and OXF] provide [ZMB] with consistent, sensitive and responsive care it is likely [ZMB] would build on her current relationship with [OXF] and develop a secure attachment relationship with her grandparents'.[20]

10. Ms Webster further states 'It is imperative that any potential rupture to the child's attachment relationship with her caregivers is achieved at as young an age as possible to minimise the impact for her.'[21]
11. Ms Webster was asked to comment on the psychological benefits, if any, that a child under Guardianship may obtain from placement or connection to biological family, and the effect of severing such a relationship. Ms Webster states:

'There is a universal understanding that it is only when children cannot be safely looked after by their own biological family that they should be cared for by others... A child who is still able to be raised within their biological family is likely to best maintain their connection with their family, which is the best source of information regarding the child's identity. Being raised within family can support a child's self-esteem by reducing feelings of loss, rejection, self-blame or abandonment when a child discovers that they were removed from their parents' care... The benefit of children being able to maintain sibling relationships despite being under Guardianship is also acknowledged, as siblings can be an important source of emotional support throughout life_.'_[22]

12. Ms Webster acknowledges in her report that, if the decision was made to move the child from BUX and NZY's care to the care of UYY and OXF, she would likely experience a degree of psychological harm, distress and a grief response. Ms Webster considers that the harm, distress and grief will be mitigated due to the child already having a relationship with OXF, and by UYY and OXF's ability to provide attuned and affectionate caregiving.
13. Ms Webster noted in her report that there had been no criticism of BUX and NZY's care of the child, however Ms Webster expressed concern about their ability to support a relationship with the child's biological family, which would likely cause harm and distress to the child in the future.
14. Ms Webster gave evidence at the hearing, consistent with the content of her report. Ms Webster gave evidence that there is a risk of harm to the child whether she remains in the care of BUX and NZY or is placed in the care of UYY and OXF. Ms Webster confirmed the harm from disrupting her attachment to BUX and NZY as being able to be mitigated by her existing attachment with UYY and OXF, and their ability to respond to the child's needs. Ms Webster confirmed the importance of identity being fostered by relationships to biological family.
15. BUX and NZY asked questions of Ms Webster and made submissions regarding her evidence, which the Tribunal considered to be completely unfounded.
16. BUX and NZY submitted that Ms Webster's opinion was biased, as she had met with the Department beforehand. The Tribunal rejects this submission and accepts that it is an ordinary part of providing an opinion regarding a child under Guardianship to meet with the Department to understand the background.
17. BUX and NZY submitted that Ms Webster would provide a biased opinion as, from time to time, she accepted referral work from the Department. The Tribunal rejects this submission. The Tribunal accepts that Ms Webster may form part of a panel that the Department refers work to. This does not suggest any lack of independence on her part.
18. BUX and NZY submitted that Ms Webster would stand to benefit financially from her remedial work as a psychologist and as such would provide an opinion that would cause harm to the child. The Tribunal rejects this submission and views it as nothing more than an attempt by BUX and NZY to discredit Ms Webster's evidence, without any foundation.

1. The Tribunal was provided with Departmental policies, used by Departmental staff to guide their decision making under the Act.
2. One policy entitled 'Manual of Practice - Place a child or young person in care chapter' states the purpose of the policy as 'To support the placement of children and young people in safe, nurturing, stable and secure environments. This includes placement of children and young people in care both subsequent to removal and when a placement change is required.'[23] A principle of the policy is that 'attention is paid to early, thorough scoping of kinship placements.'[24]
3. The policy further states that:

'The first preference is for the child or young person to be cared for by members of their own family, where safe and appropriate. Kinship care supports children and young people to remain connected to family and culture, and can contribute to the child or young person's sense of belonging and stability within their care arrangement.'[25]

'It is essential that efforts to scope for family and kin who may be able to provide safe care and connection begin as early as possible and continue as needed throughout the young person's time in care.'[26]

'Where it is not possible to place the child or young person with a member of their own family or kinship networks, the next preference is for them to be placed in a family-based care setting (such as foster care...).[27]'

The original decision - removal and / or placement?

1. The Tribunal heard evidence at the hearing regarding the nature of the decision being reviewed. It was submitted by the Department that the decision being reviewed was a placement decision only. It was submitted by BUX and NZY that it was a placement and a removal decision. It was further submitted by BUX and NZY that a placement decision cannot be made without a removal decision being made first.
2. On 24 November 2021, Mr Ribar made a decision to place the child with UYY and OXF. His decision was recorded contemporaneously in a Departmental case note.[28] The subject of the case note, and the decision of the case note, is 'supervisor decision to place [ZMB] with Grandmother'. The category of the case note is 'placement'. The assessment of the case note is 'refer to 15/11/21 consult with PSW and psych to place [ZMB] with grandparents pending CARU approval. All parties in agreeance to place [ZMB] with grandmother.' The Tribunal understands 'PSW' to be principal social worker, 'psych' to be psychologist and CARU to be the carer assessment review unit. There is no reference to removal in the case note.
3. On 2 December 2021, Mr Ribar wrote to BUX and NZY regarding the decision. The letter states 'DCP wish to formally advise you that a decision has been made to place [ZMB] in an approved kinship placement, that being paternal grandparents, OXF and UYY.'[29]
4. There is no reference to removal of the child in the letter.
5. On 2 December 2021, Mr Ribar replied to an email from NZY, where she had questioned the legislation. Mr Ribar provided NZY with a copy of s 84 of the Act, highlighting s 84(1)(a) - placing the child with a member of their family.[30]
6. On 29 April 2022, Mr Ribar produced a statement of reasons for the benefit of the Tribunal. In his reasons, he states that the decision is a decision to place the child in the care of UYY and OXF and also a decision to remove the child from the care of BUX and NZY. Mr Ribar stated that placing the child 'with kin would help her to develop her connections with extended family' and that 'kinship care, which is safe and nurturing, optimally provides a child or young person to maintain and develop their sense of identity'.[31] Mr Ribar refers to the sections of the Act providing for the safety and needs of children and the placement principles, and principles of intervention.
7. On 24 January 2022, Mr Vajdic conducted an internal review of the decision. Mr Vajdic identified the decision as 'the reviewable decision in this instance relates to DCP seeking to remove [ZMB] (aged 10 months) from her current foster placement with the applicants, [BUX] and [NZY], and place her in care of her paternal grandmother, [OXF], and her paternal step grandfather, [UYY].'31
8. In his oral evidence Mr Vajdic described his review as a 'desktop analysis and conversations with the applicants' (being BUX and NZY). Mr Vajdic stated that, in his view, the decision regarding the child was a removal decision and then a placement decision. Mr Vajdic stated that, to initiate a transfer, consideration needs to be given as to whether the current placement is inadequate.
9. Mr Vajdic confirmed that he had not spoken to UYY and OXF as part of his review process, he had not sought any further reasons from Mr Ribar for his decision, and he had not had regard to a Departmental policy relating to placement having the view that it related more to initial placement.

Tribunal consideration - weight to be given to the original decision

1. Section 84(1) of the Act allows the Chief Executive from time to time to 'do 1 or more of the following' (our emphasis). The section then goes on to provide for actions such as placement, removal, arrangements for education, etc.
2. In our view, Parliament clearly intended that the Chief Executive be able to do one of the actions at a time or do multiple actions at a time. Placement and removal are listed as separate subsections. In our view, it is clear that Parliament intended that the Chief Executive may make a placement decision only, given the ability of the Chief Executive to do one of the actions.
3. The case note made by Mr Ribar on 24 November 2021, and his subsequent communication with BUX and NZY on 2 December 2021, clearly reflect that his decision was one of placement only - pursuant to s 84(1)(a) of the Act.
4. Mr Ribar provided a statement of reasons some five months after his decision. The Tribunal accepts that he placed significant weight on placement with biological family, noting the benefit to the child from this connection. Mr Ribar did, however, cause confusion in his statement of reasons by referencing placement and removal.
5. The Tribunal accepts that the decision made by Mr Ribar is a placement decision only, pursuant to s 84(1)(a) of the Act. The Tribunal places reduced weight on his decision given the lack of contemporaneous reasons provided for the decision.
6. The Tribunal places no weight on the reasons of the internal review of the decision made by Mr Vajdic. The Tribunal considers that the Chief Executive's delegate on internal review has misunderstood the administration and operation of the Act. Mr Vajdic purported to conduct a review of a removal and placement decision, yet there was only a placement decision to be reviewed.
7. This is a merits review. The role of the Tribunal is to consider the matter on its merits at the time of the review. The Tribunal received substantial additional material on review, including a psychological opinion regarding the child, affidavit and oral evidence, and recent Departmental records, that were not before the original decision maker.
8. As such, the Tribunal has essentially considered the matter afresh in order to reach the correct and preferable decision.

Tribunal consideration - review of a s84(1)(a) placement decision

1. Section 84(1)(a) of the Act allows the Chief Executive to place a child in the care of a member of their family.
2. Section 84(3) requires the Chief Executive to have regard to the principles of intervention and the placement principles.
3. The placement principles provide that all children who have been removed from the care of a person should be placed in a safe, nurturing, stable and secure environment. The Tribunal is satisfied that, if the child were placed with UYY and OXF, she would be in a safe, nurturing, stable and secure environment.
4. The placement principles provide that the preferred option in relation to such placement of a child is to place the child with a person with whom they have an existing relationship. The Tribunal is satisfied that if the child were placed with UYY and OXF she has an existing relationship with them.
5. The principles of intervention require actions to be taken in a timely manner and, in the case of young children, actions to be taken as early as possible to promote permanence and stability. The Tribunal accepts the evidence of psychologist Ms Webster that, if the child were to be placed with UYY and OXF, the transition should occur as soon as possible, to allow the child to develop a secure attachment with UYY and OXF as her primary care givers.

Tribunal consideration - connection to biological family and self-esteem

1. Section 8(1)(a)(b) and (d) of the Act require that a child's need to be heard and have their views considered, a child's need for love and attachment, and a child's need to achieve their full potential all be considered in the administration and operation of the Act.
2. The Tribunal does not have any concerns that these needs would not be met for the child whether she remained in the care of BUX and NZY or whether she was placed in the care of UYY and OXF.
3. Section 8(1)(c) of the Act requires that a child's need for self-esteem is to be considered in the administration and operation of the Act.
4. Section 8(3) provides that it is desirable that the connection of children with their biological family be maintained.
5. The Tribunal accepts the evidence of Ms Webster that being raised within family can support a child's self-esteem by reducing feelings of loss, self-blame or abandonment when a child discovers they were removed from the care of their parents. The Tribunal also accepts the evidence of Ms Webster that sibling relationships can provide a source of emotional support throughout life.
6. The Tribunal considers that, if the child were to live with UYY and OXF, her self-esteem would be supported. She would be surrounded by biological family and be able to understand her identity, thereby reducing potential feelings of loss, self-blame or abandonment when she discovers that she was removed from the care of her biological parents. The Tribunal considers that, if the child were to live with UYY and OXF, she would grow up close to her half-siblings which would likely provide emotional support for her.
7. The Tribunal considers that, if the child were to remain in the care of BUX and NZY, her need for self-esteem in this regard would not be met.
8. BUX and NZY gave evidence that, if the child were to remain in their care, they would foster a relationship with UYY and OXF as grandparents. They also submitted that they would foster a relationship with the child's half-siblings.
9. The Tribunal considers that BUX and NZY hold strong entrenched negative views regarding the ability of UYY and OXF to care for the child - even at access visits. The Tribunal considers that, if the child were to remain in their care, these views would preclude them from being able to foster any sense of meaningful relationship with the child's biological family.
10. The Tribunal considers it likely that the child would suffer long-term harm if she were to remain in the care of BUX and NZY, as the Tribunal considers she would not have the psychological benefits of connection to biological family.

Tribunal consideration - safety of children and young people paramount

1. Section 7 of the Act provides that the paramount consideration in the administration and operation of the Act is to ensure children and young people are protected from 'harm'.
2. The Tribunal accepts that, if the child were placed with UYY and OXF, it would disrupt her attachment from BUX and NZY. The Tribunal accepts that this would cause distress and a grief response for the child.
3. The Tribunal is well satisfied that OXF has a close existing relationship with the child and is able to respond to the child in a child-focussed manner to mitigate her distress. The Tribunal is also satisfied of UYY's commitment to supporting the child in any transition to their care. The Tribunal considers UYY and OXF would be able to form a secure attachment as primary caregivers to the child.
4. The Tribunal notes that the Department are able to offer initial and ongoing support to UYY and OXF during any transition period and that UYY and OXF are aware of this support, and will access it if needed.
5. This is a matter where the Tribunal has to consider the potential short-term harm to the child if her attachment to BUX and NZY is disrupted, against the potential long-term harm the child may suffer without meaningful connection to her biological family.
6. The Tribunal considers that the potential short-term harm to the child can be mitigated and that she will be able to form a secure attachment to UYY and OXF. She has an existing relationship with them. The Tribunal considers that the long-term harm, were the child to remain in the care of BUX and NZY, to be more significant. This harm relates to her long-term self-esteem, sense of identity and connection to biological family, including grandparents and siblings.

1. After careful consideration the Tribunal is satisfied that the correct and preferable decision is to place the child in the care of UYY and OXF, pursuant to s 84(1)(a) of the Act.
2. The initial placement decision made on 24 November 2021 is affirmed.

[8] Section 35 South Australian Civil and Administrative Tribunal Act 2013 (SA).

[11] Affidavit of OXF affirmed 1 June 2022.

[17] Affidavit of Alen Ribar affirmed 26 May 2022, Annexure AAR-5.

[18] Affidavit of Alen Ribar affirmed 26 May 2022, Annexure AAR-4.

[19] For example, Book of Documents, pages 36, 42, 47-48.

[20] Report of Jessica Webster dated 4 May 2022, page 4.

[21] Report of Jessica Webster dated 4 May 2022, page 5.

[22] Report of Jessica Webster dated 4 May 2022, page 5.