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[2021] SACAT 75
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-11-09
Original judgment source is linked above.
RHN & Anor v Department for Child Protection [2021] SACAT 75
The applicants, both approved foster carers, sought an administrative review of a decision made by a delegate of the Chief Executive of the Department for Child Protection ('the Department') to remove two children from a foster placement with them. The children, aged eleven and six, are under the long-term guardianship of the Chief Executive and are now residing in a residential care placement with rotational carers.
The applicants sought a review on the basis that the original decision-maker reached incorrect conclusions about the cause of the children's behavioural issues and the harm allegedly sustained by the children whilst in their care and/or failed to adequately assess and/or weigh up the harm that would be caused to the children by breaking their attachment to them and placing them in a rotational care setting.
Held, affirming the original decision under review:
Administrative Review - Administrative tribunals - Children and Young People (Safety) Act 2017 - Children and young people in Chief Executive's custody or guardianship - Removal from placement
Administrative Review - Administrative tribunals - Weight to be placed on the original decision - Inadequate statement of reasons
Administrative Review - Administrative tribunals - relying on tribunal's own knowledge - Declining to remit
Children and Young People Safety Act 2017 ss 7, 8, 10, 11, 17, 31, 53, 84, 157, 158, 159
WWZ & Anor v The Department for Child Protection [2020] SACAT 111
M, L v Minister for Education and Child Development [2018] SASFC 131
Minister for Education and Child Development v M, L and Ors [2018] SASC 32
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. EOB (aged 11) and LIK (aged 7) are half siblings who were removed from the care of their biological mother and their respective fathers by officers of the Department for Child Protection (DCP) shortly after their respective births as they were both considered to be children at risk. They were both placed in foster care with the applicants, RHN and TUV (both approved carers under the CYPS Act). By orders made in the Youth Court of SA the children are both under the guardianship of the Chief Executive of DCP until the age of 18 years.[1]
2. This is an application under s 34 of the South Australian Civil and Administrative Tribunal Act (SACAT Act) for the review of a placement decision made by the Chief Executive of the Department for Child Protection (DCP),[2] on Wednesday 20 January 2021, under s 84 of the Children and Young People Safety Act 2017 (CYPS Act).
The scheme of the CYPS Act - relevant decision-making principles
3. The Chief Executive's delegate determined on 20 January 2021 that EOB and LIK be removed from a long-term foster care placement with the applicants and moved to an alternative placement. The children are currently residing together in a licensed children's residential facility staffed by rotational carers employed by an agency. We are informed by the respondent that the current placement is temporary and is pending the outcome of this review.
4. This decision was made under s 84(1) of the CYPS Act which provides for a range of particular decisions to be made including as to a child's placement. The decision under review was made pursuant to s 84(1)(c).
5. The decision is made in the context of the CYPS Act. The initial decision maker and the Tribunal must have regard to the objects and principles of that Act, in particular noting that the paramount consideration in the exercise of any powers or duties under the Act is to protect EOB and LIK from harm (s 7). "Harm", in the CYPS Act, refers to physical or psychological harm (s 17).
6. There are other important considerations which must be taken into account when making decisions under s 84 of the CYPS Act.
7. The Chief Executive must consider the placement principles (ss 11 and 84(3)(a)), the principles of intervention (ss 10 and 84(3)(a)) (including that decisions must be taken in a timely manner and account must be taken of a child's' disability); the fact that early intervention in matters where children and young people may be at risk is a priority (s 9 and s 84(3)(c)); and that the children's needs are to be heard and recognised, their views considered, and their need for love and attachment, for self-esteem, and to achieve their full potential (ss 8(1) and 84(3)(c)) are to be taken into account.
8. The placement principles under s 11 of the CYPS Act are important principles in the context of this decision. They require that the decision-maker consider a child's need for a safe, nurturing, stable and secure environment, preferably for a child to remain or be placed in a situation where there is an existing relationship, and that approved carers are entitled to be involved in decision making relating to young people in their care. However, at all times the paramount and overriding principle for the decision-maker to focus on is to ensure that the relevant child or children are protected from harm.
9. On 23 February 2021 the applicants sought an internal review [3] of the decision made by the Chief Executive of DCP under s 157 of the CYPS Act. On 27 April 2021 the decision to remove the children from a placement with the applicants was confirmed on internal review.
10. The applicants now seek a review of the placement decision (a reviewable decision)[4] under s 158 of the CYPS Act and s 34 of the SACAT Act.
11. A review under s 34 of the SACAT Act is a re-hearing on the merits. Our role on review is to consider all of the evidence that was before the original decision-maker, any information that the decision-maker considers is relevant to our consideration of the matter, and any additional evidence submitted on review, give appropriate weight to the original decision and reach the correct and preferable decision.
12. The Tribunal has had regard to the statement of reasons for the decision (set out in an internal memorandum from Senior Practitioner Susan Shaw to Director of the Southern Region Akash Segal dated 19 January 2021) and to all of the written material that was either before the original decision-maker or which may be relevant to the Tribunal's review of the decision (i.e., the contents of the s 35 book of documents - DCP1, including the unredacted contents of Volume 1 of those documents - DCP1A [5]).
13. During the hearing the Applicants tendered affidavits prepared by the foster carers, RHN (A1) and TUV (A2), and two photos of EOB's arms, apparently demonstrating bruising (A3 and A4). The submission put to the Tribunal was that the bruising on EOB's arms was caused in circumstances other than by being inflicted by TUV.
14. Each of the applicants gave some brief evidence expanding on their affidavit evidence.
15. RHN was very clear about wanting the children returned to her care. She denied that the violence alleged to have occurred by TUV towards EOB in September 2020 occurred. She denied being 'emotionally abusive' or emotionally alienated in her interactions with the children. She disputed the concerns raised by DCP about her interactions with the children during access visits. RHN also stated that the Department gave children laptops during the first lockdown in 2020 and she expressed surprise that the Department had not placed parental blockers on the computers to ensure that EOB could not access inappropriate material. In cross examination RHN conceded that there was some yelling at home and that her husband swore on occasion.
16. RHN conceded that LIK ran away on occasion from home and was also running away from his primary school. RHN would have preferred that LIK had commenced full days at school as opposed to part days and conceded that this was the cause for some disagreement with other professionals.
17. TUV denied hitting EOB as alleged in September 2020. He suggested that any bruising could be explained by EOB fighting with other children including his brother. TUV did agree in cross examination that he was loud at home, but he suggested that the children were sensitive to loud noises. He conceded that he swore often. He described instances of LIK running away from home and of poor behaviour with him throwing things or yelling. TUV was concerned that the school required them to pick LIK up at 11 am in the morning. He felt that this would result in LIK being isolated at school as he could not build relationships with other children.
18. The applicants did not accept any responsibility for EOB accessing pornographic material on his laptop (this came to light after EOB had moved from the applicants' home). They took the view that the responsibility for installing "parental blocker" type software on the laptop rested with the Department as it had supplied the laptop to the child. The Department did not accept any responsibility for this situation and argued that this was further evidence of poor carer supervision and amounted to a serious care concern.
19. After the hearing the applicants sought to adduce evidence from the children's biological mother (MJL) via a filed affidavit. The respondent objects to the Tribunal considering the contents of that document, or alternatively submits that little weight should be attached to the contents of the affidavit.
20. Given the nature of the review (being a merits review) and the nature of the proceedings we will admit the additional affidavit of MJL and mark it as A5.
21. However, having read the affidavit and having considered all of the other material before us we are persuaded by the submissions of the respondent that little weight should be attached to the contents of A5. We note that the two children the subject of these proceedings have been under the guardianship of the Minister (now the Chief Executive of the Department) [6] since shortly after their respective births. The evidence before us suggests that their biological mother has had little access to her children since attempts at reunification ceased and they have been placed under long term guardianship of the Chief Executive of the Department.[7] There is no current plan for reunification. We agree with the submission of the respondent that the biological mother's views about the appropriate placement for the children have, in the circumstances, very little relevance to our consideration of the decision under review and we have accorded it no weight.
22. The respondent tendered a supplementary book of documents in the course of the review hearing containing material about the children's recent progress that post-dates the decision (DCP2). A confidential volume of those documents was also tendered and is marked DCP2A. This material is relevant as our obligation on review under s 34 is to consider what the correct and preferable decision is at the time of the review hearing.
23. The respondent filed an affidavit of Ms Susan Shaw, Senior Practitioner, social worker employed by the Department (DCP3).
24. Ms Shaw was cross examined on her affidavit evidence, which was primarily directed to updating the Tribunal as to the ongoing care of EOB and LIK since the placement decision had been made and speaking to their case plans. It is not necessary to set the evidence out in full.
25. In cross examination Ms Shaw was also cross examined at length about the investigation of the serious care concerns plus the various meetings and decisions made prior to the ultimate placement decision. We allowed this questioning to take place given the broad ranging nature of the s 34 merit review, although we observe again that the review hearing is not a review of the outcome of the serious care concern investigations. There was nothing in the evidence provided to the Tribunal which persuaded us that we should not accept the outcome of the serious care concern investigations (we will return to this topic).
26. Further, Ms Shaw was not the ultimate decision-maker on the placement decision. Given her lack of seniority in the decision-making process we suggest that it may have been more appropriate for the respondent to have called the decision-maker to support the Department's reasoning about the placement decision.[8] Ms Shaw was questioned at length in cross examination about the decision to remove the children from the care of the applicants. Ms Shaw was clear that the Department and other professionals held concerns that EOB exhibited violent behaviours because of his modelling of that behaviour on the behaviour of TUV, but she also clearly stated that EOB's behaviour was likely due to a number of factors. We agree with that observation.
27. Ms Shaw conceded that since EOB and LIK had been removed from the placement that there has been a high level of violence in the residential care home, but she stated that in recent months EOB has been doing so much better and the school has provided positive feedback. She stated that he seems less angry and less anxious. Ms Shaw appropriately conceded that EOB continues to have soiling issues.
28. Ms Shaw conceded that regular respite care for the children had not been provided, although she also noted that the applicants had expressed concerns about overnight respite care.
29. We will return to Ms Shaw's evidence in our final comments.
30. At the conclusion of the hearing the respondent was directed to file any incident reports which may have been prepared by the residential care agency staff regarding the children whilst in their current residential care placement. A large bundle of incident reports was filed on 1 September 2021 and is admitted (DCP4). A second bundle of reports was filed on 24 September 2021 at the direction of the Tribunal (DCP5).
31. Ms Foran has also filed and seeks to tender a Departmental procedures document entitled Incident Management Procedure dated February 2021. We accept that this document is helpful to provide the context of the reporting obligation of carers regarding safety and wellbeing issues or incidents arising during care placements (which is distinct from the obligation to report a suspicion that a child is 'at risk' under s 31 of the CYPS Act). This document is admitted and is marked DCP6.
32. The Tribunal requested an additional report from Dr Careen Lindsay (EOB's psychologist). This report dated 3 September 2021 is admitted and is marked DCP7. We have also considered two reports produced to the Tribunal at a directions hearing relevant to the question of the Tribunal members meeting with the children to ascertain their views. An earlier report from Dr C Lindsay dated 15 July 2021 and a report from Anita Franklin, therapist, dated 28 July 2021 is contained in the supplementary book of documents.
33. The contents of the two books of documents are voluminous and the additional evidence tendered on the review is also extensive.
34. We have read and considered all of those documents in the course of the review. However, it is not necessary for the purposes of the review for us to refer to all of the evidence before us in detail, or to set out the complete history of the matter. Our focus is on the ultimate reasons for the decision to change the placement and whether that is the correct or preferable decision in the context of the decision-making principles in the Act. We will only reference the main documents and incidents in our reasons, but we note that our decision is based on all of the material before us.
35. We have also considered the helpful written and oral submissions of the parties.
36. Member Gursansky attended at [redacted] on 6 September 2021 to meet with EOB. The purpose of the meeting was to provide EOB with an opportunity to express his views about his ongoing care and protection as provided for under s 159 of the CYPS Act.
37. We had heard extensive submissions from the parties about whether it would be in EOB's best interests for a member of the Tribunal to meet with him under s 159 of the Act. In determining the question of whether this would not be in EOB's best interests we took all of the evidence before us and the submissions of the parties into account. We considered s 159 and the principles of intervention set out in s 10(1)(b), which are to be applied in the operation of the Act, together with the stated needs of children to be considered in the administration of the CYPS Act set out in s 8(1)(a) of the Act.
38. We ultimately determined it appropriate and not contrary to his best interests to provide EOB with the opportunity to meet informally with Member Gursansky at a safe and supported venue.
39. Given the significant emotional and psychological difficulties facing EOB (as discussed below) and the concerns expressed by his psychologist and Departmental officers about his mental health, Member Gursansky did not consider it appropriate to directly interview EOB to seek his views about where he would like to live. However, an opportunity was provided for EOB to meet with the Member and for the Member to informally engage with the child in a safe and comfortable setting (at the rooms of his psychologist) and in the presence of his psychologist as a "support person".
40. The Tribunal valued the opportunity to meet with EOB and to discover a little about his thoughts, ideas and understanding about his current situation and of the issues he has with his younger brother. Despite the reports we had before us regarding his emotionally dysregulated and disturbed behaviour he demonstrated a polite and respectful engagement with an adult stranger and appeared to be comfortable to discuss his circumstances. We were impressed that he proved to be aware, reflective and thoughtful about his situation. It appears that he has had an extensive opportunity to discuss his ongoing situation and is well supported by his therapist.
41. A brief summary of that meeting is attached to the statement of reasons. EOB did not ask to return home, but it is clear that he is attached to his previous carers and misses them. We have taken EOB's comments and his presentation into account as one factor in assessing the correctness of the decision.
42. The Tribunal was satisfied that it was not in the best interests of LIK for a Tribunal Member to meet with him for the purpose of seeking his views under s 159 of the CYPS Act. This decision was made on the basis of LIK's young age and the evidence before us about his complex social, cognitive and developmental issues.
43. Both children have diagnosed intellectual and cognitive disabilities with multiple complex needs and exhibit very challenging behaviours. Dr Lindsay noted in her report dated 14 January 2021 that "the management of these behaviours required skills beyond the average parenting skills." [9]
44. We note, however, that we were not provided with any expert report specifically focussed on the children's diagnoses of autism and ADHD, to what extent their diagnoses might be a causal factor to explain their challenging behaviours, how their diagnoses might impact on parenting/caring issues and the consequent skill set required by any carers.
45. Ms S Shaw, senior practitioner social worker, offered her professional social work views as to the causal explanation for the children's aggressive and violent behaviours (namely exposure in the previous placement to domestic violence - TUV hitting the children, yelling and swearing - and emotional abuse due to RHN being 'emotionally unavailable' due to her own mental health issues), but we do not consider that the evidence before us was entirely satisfactory on this topic. Whilst we have no doubt that Ms Shaw was not merely relating her own opinion (the decisions and the views formed being supported by a large team of professionals) we would have been assisted by expert psychological evidence on this specific issue in relation to both children.
46. Dr Lindsay noted in her report that she had not conducted a parenting capacity assessment in the home and had not observed the carers' interaction with the children outside of the clinic setting.[10] In an undated report written by LIK's therapist, Ms A Franklin, to inform placement suitability Ms Franklin acknowledges that LIK is a complex child with special needs requiring consistent, actively engaged parenting to enable him to learn strategies to regulate his emotions. Ms Franklin does not provide an opinion to explain the cause of LIK's difficult behaviours, however, she sates that the applicants' lack of parenting skills and capacity are such that they are unable to support him to modify his behaviours or assist him to self-regulate his emotions.
47. Accordingly, we are unable to determine definitively from the evidence before us to what extent the children's difficult behaviours leading up to their removal from the placement are attributable to their diagnosed conditions or are otherwise attributable to environmental factors (such as early trauma though separation from their biological mother and access visits with her, exposure to domestic violence and emotional abuse in the previous foster placement, the carers' deficits in parenting skills, the carers' lack of psychological or emotional competence, or the mental health of the carers).
48. However, the evidence before us does indicate that some of the children's behaviours relate to their autism and ADHD diagnoses (and in LIK's case to an intellectual disability) and may have been exacerbated by external issues marked by some significant changes in their lives (e.g., early trauma issues related to removal from their biological mother and access visits to her, commencing kindy and then school). We also accept that the evidence before us demonstrates that some of the children's difficult behaviours are also likely to be attributable to significant deficits in the parenting and care that they have received in the previous placement. We will return to this issue.
49. EOB is 11 years old. He has been under consecutive short-term and long-term guardianship of the Minister orders (now the Chief Executive of the DCP) since a few days after his birth. In 2009, when he was five days old, EOB was placed in the care of the applicants.
50. On a positive note, EOB has been described variously by his previous care givers, schoolteachers and professionals as intelligent, busy, funny, loving, physically affectionate, knowledgeable about certain pet subjects, and to have a 'mind like a sponge'.
51. However, EOB has significant personal challenges and complex special needs.
52. In 2011, when he was 2½ years of age, EOB was diagnosed with Autism and subsequently, in 2018, of ADHD.
53. Since being placed in care EOB has, over time, demonstrated significant developmental, social, emotional and behavioural problems (many of which still continue) no doubt in some part related to his autism diagnosis.[11] These are summarised in various psychological, specialist and Departmental reports [12] since 29 November 2011 to date and include:
54. EOB's emotional, behavioural, psychological and medical needs have caused significant challenges and difficulties at home for his caregivers, and (since commencing in Term 1 2015 at [redacted] Primary School) for his teachers and his peers. His teachers have reported him in the past to be, on occasion, "out of control".
55. LIK is seven years old. LIK has been described by RHN, to be affectionate and loving. However, like his brother he has complex special needs.
56. Shortly after his birth concerns were raised regarding his mother's ability to safely care for him and initially some attempts were made to maintain his placement with his biological mother. However, subsequently it was recommended that he be placed under the guardianship of the Minister for 12 months and he was removed from his biological mother's care and placed with his half-brother EOB in TUV and RHN's care. On 19 March 2015, when LIK was aged 11 months, he was placed under a long-term guardianship order and has continued to reside in the care of TUV and RHN since that time.
57. LIK has had numerous health concerns since being placed with the applicants. He has had appointments with paediatric neurologists following a seizure in 2014 and concerns regarding the possibility of him having epilepsy and weakness on the left side of his body. He has also been diagnosed with mild asthma and has a history of respiratory issues.
58. Since an early age LIK has required speech pathology intervention due to delayed swallowing, feeding issues and delayed communication abilities. Prior to his commencement at school, LIK's language and communication abilities resulted in significant frustrations for him in being understood by others, resulting in observed aggressive behavioural issues said to be attributable to his seeking to gain attention and make himself understood (such as head-butting, pushing, kicking, hitting and biting others.)
59. LIK demonstrated at an early age that he had some sensory issues (disliking loud noises and tended to walk on his toes). In 2016 RHN raised concerns that LIK had begun to mimic EOB's aggressive behaviours, particularly when interacting with EOB.
60. In 2020 LIK was diagnosed with low functioning autism spectrum disorder and a mild intellectual disability. It is also reported in the documentation that he exhibits behaviours consistent with attention deficit hyperactivity disorder and oppositional defiance disorder.
61. There have been reports of LIK running away from his previous foster carer's home and placing himself in a situation of danger (there is a large, unfenced dam on a neighbour's property).
62. LIK struggled significantly in the transition from home to kindergarten and then to school. He was held back at kindergarten for an extra year (2018 and 2019) as it was assessed that he was not ready to commence school. LIK was observed to have difficulties in focusing, concentrating or sitting still for long periods. LIK responded to requests or instructions from teachers by running away. He struggled to manage his emotions at kindergarten often reverting to biting, hitting, kicking and making loud noises.
63. In 2020 he was enrolled at [redacted] Primary School on a highly modified learning plan, initially in a part-time school attendance regime. He has had significant difficulties in managing the school environment and displayed highly challenging behaviour, including verbally and physically aggressive behaviour such as yelling, screaming, and swearing excessively. During many incidents at his previous school LIK has run away and placed himself in dangerous situations. These challenging behaviours were observed to occur on a daily basis.
64. LIK had difficulties in forming peer relationships, was socially isolated and lonely at school. Like his older brother, his conversation is marked by aggressive themes and is profanity laden.
65. He is currently enrolled at a school in [redacted] where he is in a small special options class receiving highly specialised learning support.
66. The relationship between the siblings is complex and difficult to manage.
67. The evidence suggests that when LIK was first introduced into the family home EOB's acceptance of a younger sibling and the attention provided to him was not managed well by the applicants. Over the years the relationship between the boys has been marked by extreme physical and verbal aggression (and this behaviour continues in the current placement).
68. The applicants have been dealing with this in a variety of ways. The Department was concerned that EOB spent considerable time alone in his room, often unsupervised on his computer. A child safety gate was installed early by the applicants to separate the boys and was left in place to keep the boys away from each other. There were concerns that no attempt had been made by the applicants to assist the boys to self- regulate their behaviours with each other.
69. Extensive professional support has been provided to both children since they have been in care. Each child has a current NDIS plan.
70. EOB has been receiving psychological support for many years and continues to be monitored by a paediatrician. Since 28 March 2017 he has been receiving individualised therapy from a Child and Adolescent Psychologist, Dr C J Lindsay. He also has the support of an occupational therapist and a speech therapist in addition to a school support officer in the classroom.
71. LIK has seen a paediatric neurologist, has required dental surgery in the past due to a history of poor dental hygiene, is under the continued care of a paediatrician and, in addition, attends individual therapy with therapist Anita Franklin (which commenced on 23 July 2020).
72. At school, LIK has the support of a school support officer.
73. The carers have been supported by professional workers from Anglican Community Care Inc (ac. care). This agency works with foster carers and the Department to support foster carers 24 hours a day 7 days per week as required. The main support worker from ac. care for the applicants was Michael King. After the 2016 care concern investigation and parenting assessment additional support from ac. care was provided involving weekly visits. The applicants were also supported by ac. care to attend therapeutic and behaviour management development programs. RHN has completed numerous courses.
74. DCP referred the case to Mr I Raymond (psychologist) for placement support in 2018 . It is reported that TUV engaged superficially with the process and did not take the opportunity to address his mental health and perceived poor parenting. He spent much of the process complaining about the lack of Departmental support. He has also been referred to psychologist Ben Ramsay but failed to continue after 2 sessions. RHN failed to follow up on a recommendation for psychological counselling. She has engaged her own mental health support via a mental health nurse.
75. A complete list of the support provide to the applicants is detailed in the 19 January memorandum and appendices. We accept that this has been extensive.
Summary of care concerns in previous foster placement and parenting capacity assessment
76. Despite the submissions of the applicants' counsel, we find that the decision to initiate a placement change has not occurred in the context of one single recent care concern incident; rather we find that there has been an accumulation of significantly concerning issues about the care being provided by the applicants over at least 5 years.
77. There have been a number of care concerns which have been investigated by the Department over the course of the children's placement with the applicants. Some of those concerns have come to the attention of the Department through mandatory notifications (the detail of which are set out in the confidential book of documents).
78. The care concerns relate to the standard of care provided by the applicants with recurring themes of neglect, physical abuse and emotional abuse.
79. As discussed further below, we do not intend to revisit or reinvestigate each of those care concerns as that is not our role on this review. We are satisfied that a full investigation of each care concern occurred appropriately by the Department following each report.
80. We are satisfied that the outcome of the investigation of those care concerns, irrespective of the findings, do support some real deficits in the quality of care provided by the applicants to the children resulting principally in psychological harm. We accept that the concerns held by Departmental officers and relevant professionals about the quality of care provided by the applicants extend beyond those individual care concerns and the outcome of those investigations.
81. We have considered in detail the April 2016 (unsubstantiated) care concerns relating to an allegation that TUV physically abused EOB causing bruising on EOB's legs and in the centre of his back, an allegation that RHN hurt EOB when assisting him with toileting, and an allegation that the child's emotional needs were unmet. We note the evidence, including denials of physical abuse, provided by the applicants at the hearing.
82. As a result of the 2016 investigation, concerns were raised within the Department about the applicants' capacity to provide an empathetic and nurturing care environment for the children and about RHN's [redacted] health. During the care concern investigation, a concern was also raised about RHN continuing to externalise responsibility for EOB's behavioural issues (i.e., she failed to appreciate that his behaviour was in any way attributable to the level of care provided in the home - we accept that this has been a common them in the Department's engagement with RHN).
83. In late 2016, as a result of the issues raised during the care concern investigation a detailed psychological assessment was undertaken of TUV and RHN's parenting capacity.
84. We have taken into account the concerns and recommendations of psychologist Ms J Humphreys in her very detailed report dated 21/12/16.[13] Ms Humphreys raised significant concerns at that time about a number of factors which she considered were impacting on the applicants' ability to provide the children with emotionally attuned and responsive caregiving.
85. Ms Humphreys noted the physically and emotionally demanding nature of caring for the children with their special needs, but she also observed that the applicants failed to recognise or take responsibility for any of their own parenting deficits and instead engaged in finger pointing by blaming the Department and the school for the children's behaviours.
86. Ms Humphreys identified that RHN was experiencing her own [redacted] health difficulties which were impacting on her caregiving approach. It was identified that the applicants failed to provide EOB with attuned and responsive care during his times of distress. Ms Humphreys also expressed the view that there was the risk that the applicants' capacity to maintain and provide feelings of love and empathy towards EOB would be suppressed by the stress of caring for him (described as "blocked care"). We observe that this was apparent in various responses provided by TUV. Even at that early stage we note that TUV expressed some ambivalence about the concept of caring for EOB long term. We also note that the applicants both complained about the turn-over of Departmental caseworkers and expressed considerable frustration about the perceived lack of Departmental support including the lack of respite care options. Ms Humphreys acknowledged their complaints but also emphasised their lack of personal accountability for any care deficits.
87. No recommendation to alter the placement was made, but the need for consistent carer respite was identified and a recommendation was made for therapeutic support from a psychologist for RHN, and for a therapist to work with TUV and EOB. TUV was referred to a psychologist and TUV and EOB were referred to Dr Lindsay. RHN did not take up the offer of engaging with a psychologist but chose to engage with a mental health nurse of her own choosing.
88. In March 2018 a further carer review was undertaken by the respondent.[14] The reviewer had accessed all relevant file notes and reports and had also consulted with personnel from the care support agency ac. care. Of significance, the Assessment Officer reported at the outcome of the review that:
"I am unable to be assured that the Applicants continue to offer an acceptable standard of care for the children".
89. The reviewer noted that the applicants had experienced their own personal stressors including [redacted]. The reviewer also noted that the children's behaviours were challenging and that the applicants had failed to undertake the therapy that had previously been identified. There was an observation of fractured relationships between the applicants and Departmental officers, in particular, that TUV was not engaging with the care team and that he had been verbally abusive in a phone call to a DCP worker.
90. Despite the ongoing concerns about the quality of care being provided no recommendation was made to change the placement. The reviewer recommended that the applicants required additional monitoring, support and training in relation to dealing with stress, working within a care team, providing emotional care and responding to the children's very challenging behaviours. We note that, although this was raised by the applicants, there was no focus during that particular review on pursuing respite options for the children.
91. Between May and June 2018 three further care concerns were received, which were each investigated and found to be substantiated:
(a) the applicants had neglected LIK's oral hygiene, requiring LIK to have ten teeth removed;
(b) the applicants had emotionally abused LIK, in failing to provide emotional support to him after he disclosed that he had been touched sexually by another child at childcare, and failing to notify the respondent of LIK's sexualised behaviours and disclosures;
(c) the children were exposed to TUV swearing "every day" and yelling "a lot"; TUV was aggressive and intimidating in his interactions with others; the applicants lacked insight into the impact of that aggressive behaviour on the children's emotional wellbeing and behaviour; the use of child-safety gates in the house to separate the children suggested that the applicants were not adequately supporting the children to develop positive relationships and interactions; and the applicants' emotional availability and ability to provide the children with an emotionally attuned and responsive care environment may be impacted by their own poor mental health (TUV self-reported at the meeting that that he had been experiencing [redacted] and "kept losing it", "was always very angry" and had "given up".)[15] TUV also admitted to smacking LIK. Departmental officers expressed the view that the children were mimicking the physical and aggressive behaviours displayed by TUV in the home.
92. We have considerable concerns about some of the documented comments in the DCP file note of the meeting in July 2018 between TUV and RHN and Department for Child Protection Social Worker Susan Shaw, her Supervisor Mary Pittard and staff from ac.care during their investigation of the care concerns.[16]
93. We note in particular that TUV had returned to working shift work at that time and made various comments suggesting that he was not committed to the continued care of the children and was suffering from carer stress and exhaustion. He was almost begging for respite options to be made available by the Department stating that "caring for the children without regular respite has had a psychological impact on him and (RHN)." TUV stated that "the care concerns are going to come all the time because we don't get a break" adding: "I'm glad this happened (the three moderate care concerns raised in May and June 2018) because we're almost at breaking point."
94. TUV also stated "I'm on the wrong side of 50 and there are things I want to do... I've given up so much to care for the children". It is very clear that TUV held a lot of resentment towards the Department for the lack of respite care being made available, the impact of the 2016 parenting capacity assessment, and the strain that this had placed on his marriage.
95. RHN acknowledged during the course of that investigation that TUV swore at home and raised his voice. She said that TUV "yelled a lot" and that "this is not uncommon". She stated he "yelled at least once per day" and "swears every day". However, she did not consider this to amount to domestic violence.
96. Following that investigation consideration was again given by the Department to changing the children's placement.
97. The Department engaged with ac.care, a DCP psychologist and a DCP principal social worker in June and July 2018 and advised the applicants of their concerns in August 2018. Ultimately the decision to change the children's placement was not supported and it was resolved to develop a case and action plan in 2018 to guide the applicants and the services supporting EOB and LIK (including those at EOB's school).
98. We accept that numerous supports were put in place between late 2018 and early 2020 and that in March 2020 a review of the placement identified some significant improvements in the care being provided, with a recommendation that the placement continue.[17] In fact, the report (prepared by social worker Susan Shaw) was almost glowing, noting that since the care concern action plan had been put into place the worker had observed significant changes in the carer's relationship and their co-operation with the Department.
99. Ms Shaw noted that the applicants were working more co-operatively with the Department and ac.care and that "EOB was really thriving in their care demonstrating a significant reduction in his challenging behaviours ... the carers were providing stability, consistency, structure and emotional supports". She also noted that TUV and RHN were "actively supporting LIK and working with services to improve his well-being". Ms Shaw noted "All previous concerns regarding the parenting environment afforded to EOB and LIK by TUV and RHN have been addressed. DCP do not currently have any concerns regarding TUV and RHN's care of the children."
100. However, over the course of 2020, not long after the date of the assessment report prepared by Ms Shaw, it was observed that there was a gradual deterioration in the applicants' emotional functioning and of their care of the children.
101. During 2020 tensions arose between the applicants, the Department and the professionals at LIK's primary school in relation to LIK's schooling. The advice that was provided to the Department by the school and other professionals was that LIK should not commence school full-time, whereas the applicants advocated for LIK to attend school on a full-time basis. LIK's behaviours were noted to be extremely difficult at school and included his running away from class and leaving the school grounds. He was observed to be 'emotionally dysregulated' at school and aggressive. Around this time there was also a report that LIK had run away from home and was observed to be near a neighbour's unfenced dam unattended.
102. During the latter part of 2020 EOB's emotional functioning and behaviours also regressed, including an observed deterioration in his ability to regulate his emotions, his toileting and his quality of sleep. He told his therapist in October 2020 that he "feel safest at school".
103. In September 2020 care concerns were raised that TUV had physically abused both of the children. EOB and LIK both presented with bruising and each stated that TUV had either grabbed or kicked them around the location of the bruising. RHN denied that there were any issues with TUV's care of the children and TUV denied the allegations. Whilst the concerns were being investigated TUV voluntarily left the home and further consideration was given to a placement change. A Safety Plan was introduced, and the Department and ac.care provided some additional supports.
104. We note that the investigation must have been particularly distressing for EOB as he was interviewed by a police officer at a police station and by a Departmental officer.
105. The outcome of the September 2020 care concern investigation on 15 January 2021 was 'substantiated', namely it was accepted by the investigator that EOB and LIK had both been subjected to physical abuse (TUV physically abusing EOB and LIK) and emotional abuse (both children being exposed to domestic violence, namely excessive yelling and swearing in the home) in the care of TUV and RHN and that there were deficits in the care being provided to them.[18]
106. We note with concern that during the investigation of the September 2020 care concern incidents TUV stated that "he had lost half his life because of the boys...and he "never wanted them anyway".[19]
107. TUV continues to deny the allegations of physical abuse.
108. We note the submissions of the applicants' counsel about the nature of the care concern investigation conducted by the Department and the documented finding of the care concerns (including allegations of physical abuse) being 'substantiated' to a certain standard of proof. Mr Tredrea submitted that other Government agencies reach conclusions and make administrative findings about unacceptable risk to children without making positive findings of confirmed conduct on the balance of probabilities. He suggests that such an approach is preferable to the one adopted by DCP.
109. That may be so, however, it is not our role to revisit each investigation or review the findings, or the process of Departmental investigations. We do, however, observe that each investigation, including the 2020 investigation, was comprehensive, and we accept the outcome of the 2020 serious concern investigation. We note that in doing so we have also had the benefit of considering information contained in the confidential book of documents.
110. We accept that there were identified significant deficiencies in the care being provided to the children at that time.
Meetings and consultation leading to decision to change placement
111. A number of high-level Departmental meetings were held prior to the decision to change the placement for the children**.** Those meetings commenced prior to the outcome of the investigation into the September 2020 care concerns (that investigation being finalised on 15 January 2021). Numerous professionals were consulted before the change of placement decision was made.
112. A complex case review meeting was held on 10 December 2020.[20] This meeting was chaired by Ms Prue McEvoy, Lead Psychiatric Director, DCP and Mr Joel O'Reilly, Lead Clinician for complex case review, DCP. The meeting was attended by the relevant caseworker, supervisor and manager, Mr Michael King from ac.care, Dr C Lindsay and other senior officers of the Department.
113. Based on information presented at that meeting it was the recommendation of the reviewers that the placement be brought to an end, noting that the authors of the recommendation anticipated that the serious care concern investigation report would likely make a similar recommendation. It was recommended that alternative placements be 'scoped as soon as possible', and that the Department consider 'separating the siblings given the highly parentified relationship' between EOB and LIK.
114. Dr C Lindsay, EOB's therapist, was separately consulted. She observed in her report, dated 14 January 2021,[21] that the applicants lacked insight into their parenting deficits and their parenting skills and did not have the ability to reflect on those deficits and their style of parenting. She also considered that they lacked insight about the need for age-appropriate conversations with the children, managed the children's behaviour using a parenting style that does not promote learning of the skills needed for the children's development, and lacked insight into the diverse set of skills that children need to successfully attend kindergarten or school.
115. Dr Lindsay noted that TUV had undertaken numerous courses but tended to look for diagnostic and medication interventions to manage EOB's behaviours rather than parent focused therapeutic interventions. Dr Lindsay felt that RHN lacked insight into how to meet the emotional and developmental needs of the children. She was concerned about the relationship between EOB and TUV.
116. Dr Lindsay observed that both EOB and LIK are complex children with special needs (referred to above) whose behaviours require skills beyond the average parenting skills. She concluded that the applicants 'lacked the level of insight and management to fully meet the emotional and safety needs of the children'. Dr Lindsay agreed that leaving the children in the care of the applicants "will continue to impact their developmental progress".
117. Dr Lindsay also raised concern about the harm that would be occasioned by each of the children by moving them from the placement. We accept this as an important recognition by one of the professionals involved in this matter that removing the children from their primary caregivers at the ages of 7 and 11 would likely cause significant emotional harm to the children. We will return to this issue below under the discussion about competing considerations.
118. LIK's therapist, Ms Anita Franklin, was also consulted and noted in January 2021 that the applicants were inconsistent in ensuring LIK's attendance at appointments with her and that her observations were that they were not open to suggestions that involved them putting in effort and taking responsibility for assisting LIK to modify his behaviours. Ms Franklin was of the view that TUV was disinterested in learning suggested strategies and that RHN became easily heightened or disagreed with any suggestions which differed to her own.
119. In early January consultation occurred with the Principal Social Worker and Psychological Services (Srdjan Vajdic) and with ac.care. They are all reported to have supported bringing the placement to an end with ac.care agreeing that the placement was unsustainable.[22]
120. A placement meeting was held on 7 January 2021. The applicants were invited but did not attend. An advocate from Connecting Foster and Kinship Carers attended to represent their views.
121. An internal recommendation from the [DCP] Office dated 19 January 2021 (authored by Ms Susan Shaw) was prepared which set out the basis for the recommendation to remove the children from the care of TUV and RHN.
Additional care concern discovered post-removal - accessing pornography
123. After the children were removed from the care of TUV and RHN an additional care concern came to light. The children were observed to be exhibiting sexualised behaviour towards each other. It was ascertained that EOB has been regularly accessing pornography on the laptop that had been provided to him by the Department for his schooling.
124. During the course of the hearing the applicants blamed the Department for providing a laptop which did not contain the appropriate "parental blocker" software and the Departmental witness suggested that the responsibility for installing the software and supervision of EOB in his use of the laptop rested with the carers.
125. We take the view that the installation of appropriate "parental control/blocker" software on a laptop provided to a vulnerable child in care ought to have been a joint responsibility between the carers and the Department. We agree, however, that supervision of the child's internet usage rested with the carers. We understand that ac.care had provided written educational material about the dangers of unsupervised access to the internet to the applicants (and all other carers), although it is not clear if that extended to advice about how to install the appropriate software. If it did not, we recommend that this now occur.
126. It is of concern, given his age and significant vulnerabilities, that EOB has been able to access adult pornography.
127. An internal review under s 157 of the CYPS Act was conducted on 20 April 2021 following which the placement decision was affirmed. The review to SACAT is not a review of the internal review decision so we do not intend to address those reasons nor analyse that process further.[25]
128. In directions issued by the presiding member on the papers some weeks prior to the hearing the respondent was invited to identify the statement of reasons for the initial decision in the book of documents. The respondent was advised that the Tribunal was considering seeking further reasons for the decision under s 35(5) of the SACAT Act.
129. The Tribunal was later informed by the respondent's counsel that the statement of reasons of the decision-maker (Akash Segal, Director, Southern Region) was set out in the detailed memorandum (with appendices) prepared by Senior Practitioner Susan Shaw, dated 19 January 2021, and endorsed as 'approved' by Mr Segal. The respondent in its outline of argument invites the Tribunal to accept that Mr Segal has adopted the findings and reasons described in the memorandum.
130. The internal memorandum was simply endorsed as "approved" with Mr Segal's signature and with no additional comments.
131. No written statement of reasons for the initial decision has ever been provided to the applicants. They were personally informed of the decision at a meeting on 27 January 2021 where they were also advised of their internal review rights.
132. We find this situation to be most unsatisfactory. We consider that the internal memorandum document is merely a recitation of the relevant history, an explanation of the consultation process and a recommendation about the appropriate decision to be made based on the author's assessment of harm (in consultation with her supervisor and manager). In our view this document remains a briefing memorandum seeking approval to make a decision and does not constitute a statement of reasons for the decision.
133. Further, nowhere in the internal memorandum is there any detailed analysis or discussion of the likely emotional and/or psychological harm that will potentially ensue for the boys from being removed from their long-term caregivers as a result of severing the existing attachment relationship with them. There is no assessment or comparison of future harm/risks as a result of the decision to remove the children from the placement contrasted with the past or ongoing harm of maintaining the placement.
134. There is no discussion of where the children will be moved to and whether the proposed placement will meet all of the children's expressed needs in s 8 (1) of the Act or why, if that was unknown, the move is nevertheless recommended. There is still no clear acknowledgment, even in the respondent's outline of argument, that the removal of the boys from their long-term family-based placement has or may result in significant harm to the boys.
135. The documented focus of the Department in meetings, in the internal memorandum and in the hearing has been on the poor quality of the previous foster placement and the past harm experienced by the children as opposed to potential future harm resulting from a placement change.
136. In order to demonstrate that the correct decision has been made the decision-maker needs to address the relevant principles in the Act and reveal a process of reasoning weighing up all of the competing considerations.
137. In our view, clear and comprehensive decision-making should demonstrate that the Department for Child Protection has undertaken that reasoning process including, if necessary, by setting out all of the positive and negative implications of any decision for children in its care. That may mean, if necessary and applicable, making appropriate concessions for lack of support to a placement due to poor resourcing, accepting that decisions could have been made earlier, and recognising that harm may flow to children from making any decision to change their primary carers and their place of residence.
138. In our view in a case such as this that assessment requires a discussion and analysis identifying and addressing the competing considerations set out in the CYPS Act in order to properly assess the paramount principle that the children are protected from harm by:
139. We strongly recommend that, in future, the respondent produce a considered statement of reasons from the actual decision-maker when making a placement decision.
140. Further, in a complex case such as this we recommend that the actual decision-maker (not the caseworker or principal social worker) attend the hearing and be available to give evidence about the reasons for the decision. We will address this further below.
(a) A lack of consideration of the different types of harm and a failure to balance competing considerations
141. The CYPS Act requires decision-makers to undertake the difficult task of considering and weighing up different types of harm [26] (i.e., long-term and short-term harm, actual and potential harm, physical and psychological harm), reflecting on and weighing up the important needs of children and giving appropriate recognition to the placement principles.
142. In our view the memorandum put forward as evidencing the original decision, and the respondent's case on review, does not demonstrate a complete analysis of the factors that had resulted, or may result, in harm to the children, or a proper balancing of the competing considerations in accordance with the legislation. We echo the comments made by the Tribunal in WWZ & Anor v The Department for Child Protection[27] and observe that the 19 January memorandum/reasons for decision do "not adequately record the assessment required by the legislation".
143. There is no clear statement before us setting out the decision-maker's reasoning, nor any proper sophisticated analysis of the competing considerations set out in ss 7 - 11 of the CYPS Act relevant to a decision to remove these children from a long-term placement with their current caregivers and to move them to a rotational residential care setting.
144. Most glaringly, there is a failure by the decision-maker (as set out in the recommendation), or in the respondent's submissions on review to articulate the harm that might be experienced by the boys from severing the attachment relationship with the foster carers and moving them to an alternative placement, or any weighing up of that potential future harm against the harm of leaving them in the previous placement. This gives rise to a concern that the severed attachment harm was not given sufficient weight by the original decision-maker.
145. We suggest that the decision to remove EOB and LIK from their long-term placement with the applicants must have been extremely difficult to make considering that the children had been residing with the applicants since they were babies and had clearly developed a strong bond with their foster carers. It was the only home and family that the children had ever known. We are surprised therefore that that issue did not assume any appropriate level of articulated importance in the documented recommendation for removal of the boys from the placement or during evidence in the Tribunal hearing.
146. The author of the 19 January memorandum merely notes in passing that the Department has weighed up the issues relevant to "the children's safety, attachment, disabilities, need for stability and future emotional well-being, as well as the rights of the carers and their emotional well-being." [28] There is, however, no expansive discussion about those issues or the principles in the Act which recognise the children's need for love and attachment, stability in placement, and the preferred option of maintaining an existing relationship, nor about the harm that may be caused to the children as a result of changing their placement. There was no discussion in the 'reasons' about the pros and cons of the proposed placement for the children in terms of a "safe, nurturing, stable and secure environment", nor how their psychological and emotional needs were to be managed after removal.
147. The Departmental witness (who was also the author of the 19 January memorandum) was unable to clearly concede that the decision to remove the boys from the care of the applicants was difficult or might cause harm. We agree with the submission made by Mr Tredrea for the applicants during closing submissions that it was concerning that the Departmental witness did not describe "the removal of the boys as horrible...or the least-worst option... but Ms Shaw was incapable of addressing the removal decision in those terms or any terms like it".
148. Because these principles and issues are not clearly acknowledged in the January memorandum, we are not persuaded that the ultimate decision-maker has properly balanced all of the competing considerations.
149. As this is a rehearing on the merits it is appropriate for the Tribunal to consider and evaluate the evidence in the context of the relevant principles in the Act, taking into account all of the evidence before us (including the fresh evidence of events that have occurred post-removal), in order to reach the correct or preferable decision.
The children have experienced harm in the previous placement and will potentially experience harm from the breaking of the attachment relationship with the applicants
150. We find, for all the reasons expressed in the Departmental recommendation and the professional reports, that the children have experienced physical and emotional harm in the previous placement and that the carers were unable to provide a safe care environment or to meet the needs of the children.
151. We agree that the cumulative effect of the deficits in the applicants' care of the children have resulted in harm, namely a significant ongoing negative impact on the children's developmental progress. We agree that, had the children remained in their care, that harm would have been ongoing.
152. Regrettably, no detailed expert evidence was presented to the Tribunal from either party about the harm that may be caused to the children by breaking a primary attachment with their long-term caregivers.
153. The Tribunal would have been assisted by some more detailed professional evidence relating to the harm that may potentially result from severing the children's attachment relationship to their long-term caregivers weighed up against the harm that they would have continued to experience if they had remained in the previous placement. We have some additional evidence from Dr C Lindsay, but it is not a detailed report and only relates to EOB.
154. In the absence of that professional evidence, one option is for us to remit the matter to invite the decision-maker to reconsider the decision taking into account all relevant considerations. If the past harm had not been so clear and significant, and if the decision had not already been brought into effect, we might have considered taking this course.
155. We are concerned, however, that to take that course will simply prolong this difficult matter further and impede prompt case planning for the children's long-term welfare.
156. As a specialist Tribunal we can inform ourselves as we see fit. The Tribunal is aware of a body of research that indicates that the breaking of a secure[29] primary attachment relationship between children and their long-term carers may result in "immediate trauma", namely emotional and behavioural regression for the children with the potential for them to develop mental health problems in the long term, depending on how the transition to a new placement is managed (including the management of ongoing access to the previous caregivers and their extended family).[30]
157. In M, L v Minister for Education and Child Development the court accepted expert opinion evidence that removal of a 2-year-old child from the only carers the child had known and to whom she was deeply attached would cause serious harm to her welfare and development, or (alternatively) a major trauma with a negative impact in all areas of her future development. The court there noted that: "these opinions were not simply personal opinions nor even simply common sense, but opinions grounded in substantial research conducted over half a century."[31]
158. The Tribunal acknowledges that the extent of such trauma and any ongoing harm will be different in every case and will depend on such factors as the ages of the children, the quality, security and safety of the previous relationship, the management of the removal process, the quality of the new placement and the support provided to the children after removal.
159. We have no doubt that that body of research is well known to the professionals involved in this matter, including all officers of the Department. Whilst it is not clearly expressed in the 19 January recommendation (nor in the evidence of Ms Shaw), we infer on the basis of the vast amount of documented material before us, and given the breadth of consultation that occurred, [32] that the Department gave considerable thought and close analysis to the relevant principles in the CYPS Act, particularly to the significant impact on the children that would result from severing the attachment relationship between them and their primary caregivers. Hence the obvious reticence by the Department to remove the children from the applicants' care, despite significant concerns being expressed over the preceding 5 years about the viability of the placement.
160. As psychological and counselling professionals we have no doubt that Dr Lindsay and Ms Franklin were acutely aware of those issues. We observe that the 19 January 2021 memorandum notes that Michael King from ac.care, Dr Lindsay and Ms Franklin were all "worried " about the impact on the children of the removal process; however, it is noted that they still agreed that it was in the children's best interests to terminate the placement.[33] Unfortunately, there is no detailed discussion in the memorandum to elaborate on those expressed worries. We have concerns that that notation rather understates the level of concern held by the health professionals.
161. In a report written only five days before the 19 January recommendation Dr Lindsay expressed very clear concerns (as opposed to mere worries) about the impact of a placement change on the children. She stated:
Both children have bonded with TUV and RHN and I am certainly concerned that the removal of the children from TUV and RHN will be very traumatic for both children, and particularly for EOB, whose mental health is already very fragile. In my opinion leaving the children in TUV and RHN's care will continue to impact their developmental progress; however, the removal of the children from TUV and RHN will be very traumatic, particularly for EOB, who may never fully recover from this traumatic impact on his mental health.[34]
162. We note that at meetings leading up to their removal Dr Lindsay ultimately supported the decision to remove the children (in particular EOB) from the care of the applicants. She was quoted as agreeing with the proposal in the January recommendation.
163. We infer from Dr Lindsay's position of support that she considered that the long-term harm that the children would suffer by remaining in the placement far outweighed the trauma that they would likely experience from being removed from the placement.
164. We have evidence before us regarding the children's behaviours post-removal to suggest that they may have experienced emotional trauma and/or psychological harm from the decision to remove them from the placement.
165. The children are currently residing in a rotational residential care placement supervised by 6 - 8 (perhaps up to 11) shift workers from an agency. The contents of the bundle of incident reports provided to the Tribunal since the children were removed from their previous placement provides evidence to support that they have been experiencing regular ongoing emotional and behavioural difficulties.
166. It would have assisted the Tribunal if we had been initially provided at the commencement of the hearing with copies of the incident reports that had been documented by the rotational care staff since the children had been removed from the previous placement, together with some professional evidence to interpret the children's recent behaviours. A brief affidavit from Ms Shaw summarising their post-removal behaviour was not as illuminating for the Tribunal as reading the reports of their very alarming behaviours documented by the rotational care staff.[35]
167. We accept the submission of the Department that we should bear in mind that the rotational care staff were duty-bound to make those reports[36] (and the evidence available to the Department was that the same documented behaviours were demonstrated by the children prior to their removal from the applicants but were simply not reported upon). Nevertheless, the bundle of incident reports recounting the children's behaviours support a conclusion that they are experiencing ongoing emotional difficulties. We note, however, that the children's behaviours appear to have settled down in recent months as fewer incident reports have been raised.
168. We sought an updated report from Dr Lindsay because of the concerns she had expressed in January about the potential impact on EOB's mental health if his placement was changed. The subsequent report provided by Dr Lindsay in response to our request was not as detailed as we had hoped, but we note that Dr Lindsay continues to support the removal decision. She expresses the following opinion:
The process of removal (including interview by police, feelings that he has betrayed his family by disclosing, and then having to adjust to a new placement) are all traumatic experiences for a child. However, I am pleased with EOB's progress in adjusting to his new placement.
Dr Lindsay goes on to observe that EOB's level of anxiety appears to be lower than in the 6 months prior to removal and that she would describe EOB as "coping well with the current adjustment to his new placement". She also observes that his behaviour in the placement and at school is managed well, his moods are regulated, he is not engaging in any risky or self-harming behaviours, he is sleeping well at night and he is not reporting low or depressed mood.
169. We infer [37] from this report that Dr Lindsay would agree that the breaking of a primary attachment relationship between the children and their long-term carers may result (and indeed has resulted) in "immediate trauma", namely emotional and behavioural regression for the children with the potential for them to develop mental health problems in the long term. The incident reports tend to indicate that the children have exhibited emotional and behavioural regression since they were removed.
170. The applicants' counsel provided forceful submissions to the Tribunal after the incident reports were filed and served by the respondent about this apparent ongoing trauma. We note that Mr Tredrea submits that the documented care concerns detail the "trauma, chaos, dysfunction and emotional harm suffered by EOB an LIK since their removal from the care of the applicants".[38]
171. We accept that the children have continued to demonstrate very disturbing and challenging behaviours post-removal. We note the alarming number of care concern incidents documented in the bundle of care reports tendered by the Department.[39]
172. However, we agree with the respondent's submission that we should not infer that either EOB's or LIK's current challenging behaviours are solely, or even in large part, attributable to the placement decision under review.[40] The documented behaviours are not new, although they may have been elevated for a period after removal, which is to be expected.[41]
173. In particular, EOB's [redacted] and behavioural issues, his aggression and his fighting with his brother were well documented prior to removal.
174. LIK continues to experience significant emotional dysregulation and to display significantly challenging violent and aggressive behaviours. Whilst there is no doubt that the recent placement change would have contributed to the trauma and stress that the child is experiencing, we agree with the respondent's submission that we should not infer that his current challenging behaviours are solely attributable to his removal from the applicants' care.[42]
175. We accept that LIK has a significant trauma history which continues to impact his daily functioning and that aggressive responses have been normalised for LIK. For instance, the recent reports of his running away from the residential care placement are consistent with the behaviour that he demonstrated at home and at school prior to removal from the previous placement.
Evaluation of risks/harm and competing considerations
176. Unlike the situation considered by the Tribunal in the decision of WWZ & Anor v the Department for Child Protection (where the decision was finely balanced as the subject child was being moved from a secure, stable and loving foster placement to a secure, loving, stable cultural kinship placement) the Department was here considering removing the children from a placement that was no longer providing them with a safe, nurturing, stable and secure care environment.
177. We are satisfied that the decision to change the children's placement was not based on any one care concern incident but was clearly based on the special needs of the children and the cumulative impact of the significant deficits in care provided by TUV and RHN. We are satisfied that there were also a considerable number of substantiated care concerns.
178. We agree that the previous placement was no longer safe, stable, nurturing or secure. We accept that the current placement is also not stable (in the sense of being ongoing) and is arguably lacking a nurturing primary care giver, but it provides safety and security to the children.
179. The previous placement provided the children with the benefits of the continuity of a long-term existing relationship where the foster carers and the children professed to love each other, whilst the current placement does not provide any pre-existing care relationship and is staffed by professional agency staff.
180. We have taken all of these considerations into account.
181. However, the paramount consideration in the Act is protecting children from harm.[43]
182. We find that, whilst there is no doubt that the decision to remove the children involved harm flowing from the severed attachment with their caregivers, the previous placement was not providing them with the physical safety, emotional support and care that they required to achieve their full developmental potential, to achieve their sense of self-worth or support their self-esteem. In fact, we find that due to the children's special needs and the inability of the applicants to meet those needs, there was a real risk of significant ongoing harm to the children, including a risk of further physical harm and the likelihood of the children not having their emotional, social and developmental needs met.
183. When we evaluated the impact of the decision on the children, we concluded that the "severed attachment" harm and the potential ongoing harm or distress that the children may face by being placed in an uncertain and inconsistent rotational care arrangement (with a further potential move to family-based care) is far outweighed by the greater harm of leaving the children in the previous placement as detailed above.
184. We conclude that the children should not be returned to their previous placement, even taking into account the considerable difficulties that they have faced since the decision was made. We are hopeful that the extent of the potential impact of the decision on the children's ongoing emotional and mental health will be ameliorated by a stable, secure and consistent family-based placement being located for them with ongoing intensive professional support.
185. We accept that a lot of work will now need to be done to assist the children, which is likely to include moving them from their current rotational care placement into more specialised family care placements (and perhaps into separate placements). We note the contents of the 'long term in care' case plans submitted in the supplementary book of documents and trust that the process for finalising a move to specialised family-based care can be quickly progressed.[44]
186. This has been a difficult decision but, ultimately, we accept on the evidence before us, supported by the case workers and relevant professionals, and weighing up all of the competing considerations that the decision to remove EOB and LIK from a placement with TUV and RHN is the correct decision and that there is no preferable decision other than that which was made on 20 January 2021.
188. The Tribunal is aware of the importance of the attachment relationship that occurs between children and their foster-carers, particularly when children are placed as babies. With this level of investment, foster carers can find it difficult to acknowledge when they are struggling to fulfill their care responsibilities and may be fearful of being judged negatively. We offer the view that this situation requires mature self-reflection, sensitive management and support to ensure that each child's needs remain the central focus of all of the interactions between the Department and those involved as carers.
189. We observe that there have been considerable difficulties in this case in managing the relationship between the Department, ac.care, the schools and the foster carers. Part of this was apparently due to the multiple changes in the allocated Departmental caseworker. The Department was aware that this constant change of caseworker led to TUV and RHN feeling unsupported. Accordingly, in June 2017, a decision was made to allocate a senior practitioner social worker (Ms Shaw) to the matter. Unfortunately, the relationship between TUV, in particular, and Ms Shaw has become strained over time.
190. Whilst the Department acknowledged that the constant change of caseworker was a contributing factor to the difficulties in maintaining the placement,[45] we consider that it would have been of assistance to the applicants had Ms Shaw been readily able to make that concession during the course of her oral evidence to the Tribunal.
191. The other significant stressor on the stability of this placement was the apparent lack of any sustained respite options for the children. In the 19 January 2021 memorandum this was described as an "unavoidable systems issue". The evidence before us would suggest that the lack of any sustained respite options for the children was in fact a very significant ongoing stressor for the applicants and became a considerable focus of TUV's and RHN's complaints and their feelings that they had not been supported in caring for the children with their special needs.
192. The lack of respite options for children with complex, special needs in a small country town may well be unavoidable [46] (and may well have been impacted in this case due to the apparently unwelcome interference of RHN in respite arrangements, resulting in respite carers reportedly refusing to provide care) but it is of real concern and worth flagging for the management of future complex/special needs placements. We note that TUV, in particular, was almost begging for respite on each occasion that a care concern was being investigated.
193. Given the significant special needs of each of the children we acknowledge that the skills required to adequately care for these children are high and specialised. The evidence before the Tribunal indicates a long history of difficulty for these unskilled foster carers[47] as they attempted to manage two children with complex needs, significant behavioural issues and increasing levels of violent and aggressive behaviour. During the period that higher level support was provided to the foster carers it was evident that notifications of concern reduced and at the end of this period the carers received positive feedback on their capacity to manage the children. Unsurprisingly, however, this quality of care could not be maintained once the additional support was reduced, and the children's behaviours continued.
194. It is apparent now that, even with the additional input and support provided by the Department, TUV and RHN are simply not going to be able to provide the necessary level of care and involvement with the boys into their teenage years.[48] With the benefit of hindsight, it may have been preferable had the children been removed following the placement review and parenting capacity assessment conducted in 2016 (or in 2018). However, we acknowledge that making any decision to remove children from a family-based placement is extremely difficult and we make no criticism of the Department for failing to intervene in this placement earlier. It was appropriate to develop a case plan which focused on at least attempting to up-skill the foster parents and provide additional support via DCP, ac.care, therapists and the school in order to try to maintain the placement.
195. The respondent provided little evidence about the extent of the children's disabilities, although this was detailed extensively in the documentation. In evidence, Ms Shaw commented that the children are 'not defined by their disabilities'. However, in reality each of these children does have a disability that likely significantly impacts on their behavior, learning and social interactions. They experienced early trauma in their lives which has no doubt also contributed to the need for different care requirements as they have grown older. The evidence indicates that there was an inevitability that these children would need more specialised care as they struggled in a shared unskilled family-based accommodation situation. As indicated above, we suggest that the contributing factors for the children's complex behaviours are multi-factorial and are not solely attributable to the quality of care that has been provided. We suggest that it would have been appropriate for the respondent to have provided more detailed expert evidence about this and to have made that concession at the outset.
196. The Tribunal observes that the case presented in the hearing from the Department did not recognise in a positive way the significant personal and emotional commitment that the foster carers have made to provide a family-based placement for the subject children over the last decade. Despite the fact that the placement has been troubled and has now been brought to an end, we consider that in a case such as this, where the applicants have given up many years of their lives to offer a family-based placement to vulnerable children in care, such acknowledgement ought to be readily forthcoming.
197. The respondent relied on one witness (Senior Social Work Practitioner Ms Shaw) at the Tribunal hearing to provide evidence to the Tribunal. Whilst the respondent's counsel made Ms Shaw available mainly to answer questions regarding the contents of her affidavit about what had occurred post-removal, it was inevitable that she would be cross-examined as to specific historical incidents and the reasons for the January placement decision.
198. This was a difficult task for the witness as she has been the caseworker involved in the case over a number of years. Ms Shaw was faced with providing commentary on all of the evidence that she had received in meetings and discussions with the other service providers, the therapists working with the children and their current carers. The Tribunal is conscious that the Departmental witness was being asked to give that evidence in circumstances where there is now an understandable tension between herself and the applicants.
199. Ms Shaw had been involved in assessing the applicants' care of the children, engaging service provider/therapists, recommending removal of the children, and remaining a decision-maker and supervisor in terms of ongoing access. Inevitably this led to responses from Ms Shaw in cross examination that were somewhat defensive, lacking in objectivity, self-justifying and unapologetic and which were reliant on her own opinion and interpretation of events (expressed consistently as 'I believe' statements). In our view, this also resulted in Ms Shaw not being open to making the appropriate concessions about the contributing Departmental 'systems issues' to the breakdown of the placement mentioned above. Further, there was no clear acknowledgment that the decision to remove the children from their long-term carers was a difficult one, or that their post-removal behaviours are concerning and might in part be attributable to the trauma of their removal.
200. In such a complex case, the Tribunal's view is that there would have been an advantage for a range of witnesses to have contributed to the evidence being provided by the respondent to support the decision, including from more senior officers of the Department (such as the delegated decision-maker) and from health professionals.
201. The Tribunal acknowledges the personal commitment, time, effort and love provided by TUV and RHN to the children over many years. We also acknowledge the extensive professional work and support provided to EOB and LIK, and to TUV and RHN, by numerous Departmental and professional workers over the past decade in this highly complex case.
202. We have concerns for the current welfare of the children and trust that the Department will move swiftly to make any future care decisions. We also have no doubt that the applicants will be distressed and will grieve as a result of this decision; the Tribunal is hopeful that the Department will assist them so that they may continue to be important figures in the children's lives if continuing contact is recommended.
1. The decision of the Chief Executive's delegate to remove EOB and LIK from a placement with TUV and RHN is affirmed.
2. The order made under s 60(2)(g) of the SACAT Act regarding non-publication of the contents of the documents produced to the Tribunal and of the evidence adduced before the Tribunal continues in force, save that the publication of an anonymised and redacted report of the statement of reasons is permitted, insofar as the publication does not identify the children or the applicants or disclose intrusive comment about their personal circumstances.
3. The Tribunal directs under s 60(2)(h) of the SACAT Act that the two Volumes of closed documents filed with the Tribunal under s 35 of the Act (DCP 1A and DCP 2A) are not to be disclosed to the applicants.
[1] EOB was placed under a long-term order on 21 March 2013 following the expiry of initial short-term orders; LIK was placed on a long-term order on 19/03/2015.
[2] The decision was made by a delegate of the Chief Executive.
[3] There must first be an internal review before SACAT can consider a matter on review.
[5] DCP1A is subject to non-disclosure and non-publication directions; the redacted material in the main relates to the identity of mandated notifiers.
[6] Following the introduction of the CYPS Act 2017 on 22 August 2018 children are now placed under the guardianship of the Chief Executive of the Department under s 53 of the Act. Under s 24 of the transitional provisions, children previously under the guardianship of the Minister are now under the guardianship of the Chief Executive.
[7] In relation to both children there was an initial attempt at reunification, involving regular access, which was unsuccessful.
[8] We address this further in our final comments.
[11] Although, as indicated above, we are not able to conclude to what extent his diagnosis can explain his behaviours.
[12] Psychological report dated 21/12/16 referencing various other specialist report Ms J Humphreys.
[25] WWZ & Anor v The Department for Child Protection [2020] SACAT 111 at [80].
[26] 'Harm' is defined in s 17 of the CYPS Act to include physical and psychological harm but does not include emotional reactions such as distress, grief, fear or anger.
[27] [202] SACAT 111 at [197 - 200].
[29] There might be a strong argument in this case that the attachment between the children and the applicants was not a secure attachment relationship because of the reported dysfunctional care environment and the "blocked care" issues mentioned in various reports, but we have no specific professional evidence before us to reach that definitive conclusion.
[30] WWZ & Anor v the Department for Child Protection [2020] SACAT 111 [106]; see also M, L v Minister for Education and Child Development [2018] SASFC 131 at [54].
[31] Ibid at [100] referring to the case of Minister for Education and Child Development v M, L and Ors [2018] SASC 32 at [48].
[32] Including with the Lead Psychiatric Director and Leading Clinician for Complex Case review at the complex case review meeting.
[34] Report of Dr C Lindsay dated 14/01/21 DCP 1 p 477 - 479.
[35] Ms Shaw's evidence on the topic was not as illuminating and, in our view, tended to downplay the post removal trauma and the children's documented behaviours.
[36] Per the procedures document DCP 6.
[37] Regrettably this was not directly addressed in the report.
[38] The Tribunal entertained but rejected an urgent application to return LIK to the care of the applicants on 24 September 2021.
[40] DCP 7 - report of Dr C Lindsay 3/09/21.
[41] And is consistent with the research on severed attachment trauma.
[46] We have no doubt that resourcing, the voluntary nature of respite care, the special needs of the children and other factors were involved - this is detailed in Appendix C to the 19 January recommendation - DCP 1 p 521
[47] Although we acknowledge that RHN in particular has undertaken many courses in an attempt to 'upskill'.
[48] DCP 1 pp 512 - 530 appendices B - H of 19 January recommendation.
RHN & Anor
Department for Child Protection [2021] SACAT 75