APT and APS v Director General Department of Family and Community Services [2013] NSWADT 116

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: APT and APS v Director General Department of Family and Community Services [2013] NSWADT 116 Hearing dates: 23 & 23 April 2013 Decision date: 28 May 2013 Jurisdiction: Community Services Division Before: C Huntsman, Judicial Member M Bolt, Non-Judicial Member P Foreman, Non-Judicial Member Decision: The decision is affirmed Catchwords: Review of a reviewable decision - review of a decision to remove from an authorised carer the responsibility for daily care and control of the subject children - whether the decision to remove the children is the correct and preferred decision as at the date of hearing Legislation Cited: Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Review and Monitoring) Act 1993 Children and Young Persons (Care and Protection) Act 1998 Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: APT and APS (Applicants) Minister for Family and Community Services (Respondent) Representation: Counsel S Gardiner (Applicant) Crown Solicitors Office (Respondent) File Number(s): 134008 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies

REASONS FOR DECISION

Introduction 1In these reasons for decision, the applicants are referred to by the pseudonyms APS and APT (see section 126 of the Administrative Decisions Tribunal Act 1997). The children, the subject of the decision, have also not been identified. The children, three siblings (two boys and one girl), aged 14, 10 and 7 years at the date of hearing, are referred to as Child 1, Child 2 and Child 3. Child 1 has been in the care of the applicants for 8 years, remains in their care, and is aged 14 years (male child). Child 2, a girl aged 10, has resided with the applicants for 8 years and Child 3, a boy aged 7, has resided with the applicants for five and half years, from the age of 16 months. 2The applicants are husband and wife, and are authorised carers, under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). The applicants applied and were authorised as foster carers on 27 September 2003, to care for up to six children, aged from one to fifteen, including Aboriginal children. 3Child 1 and Child 2 were placed in the care and control of APS and APT in March 2005 and Child 3 was placed with the applicants in May 2007 after a transition period. A Placement Agreement was signed for the care of Child 3 by the applicants on 5 June 2007. The three children remained in the care and control of APS and APT until 14 February 2013. Child 1 remains with the applicants at the time of the hearing, Child 2 and Child 3 have been placed in alternative care arrangements. 4On 6 June 2006 the Children's Court made final orders placing Child 1, Child 2 and Child 3 in the parental responsibility of the Minister until each attains 18 years. 5Child 1, Child 2 and Child 3 have been diagnosed with foetal alcohol syndrome with significant intellectual disabilities. 6Child S (a female born in 2003) and Child B (sister of Child S, born in 2005) were placed with APT and APS on 9 September 2011 on a short term basis during a period of transition into a permanent placement. On 3 January 2012 Child S and Child B were moved into their permanent placement. 7On 16 February 2012 a risk of harm report was received. It was alleged that Child 1 approached a worker at high school stating that he was going to run away from home because he was yelled at, and sworn at that morning, and also stated that he has been hit with a broomstick, belt, then slapped around his head, had his mouth bleed and been pushed to the ground. He stated that this morning when he did not want to get out of bed he was yelled at and sworn at. During an interview conducted subsequently Child 1 stated that "they only yell now, they hit me a few times in primary school." (p26 s58 documents). This allegation is subject of a pending AAE (Allegation Against Employee) investigation. 8On 16 February 2012 Child 2 during an interview said she had been hit with a broomstick in the past by her carer. This allegation is subject of a pending AAE (Allegation Against Employee) investigation. When Child 2 was interviewed she stated "[Child 1] outside, mum smack [Child 1]. She grabbed the broom." She also stated that she (Child 2) was hit with the broom. However a reading of the record of the interview (pages 29-34) of the s 58 documents indicates that Child 2 has difficulty answering questions with any clarity. 9On 23 October 2012 Community Services engaged Assessments Australia to conduct an independent assessment of the applicants' ability as authorised carers. The report of the assessment raised a series of concerns regarding the applicants' lack of capacity and recommendations were made. One of the recommendations made was for cognitive and health assessment of APT and APS. 10On 26 January 2013 a risk of significant harm report was received in relation to a conversation overhead between Child B and her friend that sexual abuse had occurred in her last placement. On 7 February 2013 Child B and Child S were both separately interviewed: Child B by a police officer and a Community Services officer, and Child S by a police officer only. On 14 February 2013 Child 2 and Child 3 were interviewed at school. 11On 15 February 2013 NSW Police JIRT (Joint Investigation Response Team) forwarded a discontinuance notice to Community Services. Community Services JIRT continued with their investigation which was concluded on 15 March 2013. The JIRT Community Services found the sexual abuse allegations (by Child 1 of Child S and Child B) substantiated, concluding on the balance of probabilities that it is more likely than not that the sexual abuse did occur. 12On 14 February 2013 APT was advised by the Caseworker, Ms T, by telephone, of the respondent's decision to place Child 2 and Child 3 in temporary respite care, and that the change of placement was a result of the investigation of the allegations of sexual abuse by Child 1 of Child B and Child S. Letters were sent advising of the placement change for each child, and the applicants' right to seek review of the decisions. On 1 March 2013 a further letter was written by the respondent advising APT and APS that Child 2 and Child 3 will remain in alternative placement until finalisation of various issues including the Allegation Against Employee (AAE). 13By letter dated 1 March 2013 the applicants were advised of the respondent's decision: (a)That interim arrangements apply until a number of issues are resolved (b)That in the interim Child 2 and Child 3 will remain in alternative care arrangements (c)That during the interim period until the AAE (Allegation Against Employee) investigations are complete, Child 1 shall remain in the placement with APT and APS and Community Services require adequate access to Child 1 to ensure Community Services legal responsibilities to Child 1 are maintained (d)That ongoing casework, the ability of the applicants to demonstrate the core competencies of authorised carers and positive resolution of the AAE will determine if and when the children will be returned to the care of the applicants 14The letter of 1 March 2013 detailed reasons for the decision as including that the incident investigated by the Joint Investigation Response Team (JIRT), which occurred in the applicants' home whilst undertaking the roles of authorised carers, had been substantiated. (The JIRT matter related to allegations that Child 1 sexually abused Child S and Child B.); and that there were outstanding allegations awaiting investigation, namely (a) alleged verbal abuse and physical discipline, dated 16 February 2012; and (b) allegation of "roping" a bedroom door shut, dated 14 February 2013. These were the Allegations Against Employee (AAE) which were awaiting investigation. The respondent's letter of 1 March 2013 also noted the advice provided by Community Services of the outcome of the independent review of the applicants' roles as authorised carers, conducted by Assessments Australia in December 2012, and recommendations made. The recommendations noted in the letter of 1 March 2013 were: (i)the current authorisation of APT and APS as authorised carers be rescinded immediately; (ii)that APS and APT are authorised as the short term carers of Child 1, Child 2 and Child 3 for a maximum of twelve months, when the authorisation be reviewed; (iii)that Child 1, Child 2 and Child 3 remain in the care of the Minister; (iv)that APT and APS be retrained as carers and the Code of Conduct, Placement agreement and general and mandated expectations for foster carers be reviewed, (v)and that APS undergo health review by his treating specialist. 15The applicants sought review by the tribunal of the decision of the respondent as detailed in the letter of 1 March 2013. The tribunal considers that the decision is one applying interim arrangements, until issues detailed in the letter are resolved. However, the interim arrangements include the removal of two children from the applicants' daily care and control. 16Prior to the correspondence of 1 March 2013, which is the decision in respect of which the applicants have applied for review by the tribunal, the respondent made decisions and notified these decisions in respect of Child 2 and Child 3 to the applicants by correspondence dated 14 February 2013. That correspondence notified the applicants that, following information received as to alleged sexual abuse by sibling, the Department had conducted an initial assessment and decided to investigate the matter further, and had decided to organise a new placement for Child 3 and Child 2. The stated reason was to ensure the safety of the children during the investigation. The applicants were advised in the correspondence of their rights to have the decision reviewed internally and subsequently by the tribunal. The letter of 1 March 2013 is not expressed in terms of a decision and review rights are not notified. Rather, the letter of 1 March 2013 refers to a number of matters, and to interim arrangements, but also clearly indicates that the children will remain in the alternative placement (Child 2 and Child 3). 17The parties' legal representatives indicated during the hearing that the real issue in the case, which was subject of the review proceedings, was the decision to remove the children, being Child 2 and Child 3, and for the children to remain in alternative care placements. 18The position of the applicants was that the tribunal should find that the sexual abuse did not occur, and that the children are not at risk with the applicants. The position of the applicants was also that the allegations of sexual abuse that give rise to the perceived risk to Child 2 and Child 3 are factually so implausible, so lacking in substance, and so unclear, that this must lead the tribunal to conclude that there is no risk with the three children remaining in the care of the applicants. The applicants submit that the respondent formed a view that the applicants knew of the alleged sexual abuse and this forms part of the respondent's reason for finding that the children are not safe in the applicant's care. The applicant maintains that there could be no findings made on the evidence before the tribunal that the applicants knew of any alleged sexual abuse, or that the sexual abuse in fact occurred. The applicant's position is that the evidence does not disclose a risk to the children, and given the length of time that the children have been in the applicants' care, the correct and preferable decision is to have all three children placed with the applicant. 19Given the position of the applicants, there was some focus in the proceedings on the adequacy of the evidence as to the sexual abuse having occurred. It was noted that the JIRT investigation, although finding the allegation substantiated, did not find it appropriate to prosecute Child 1, and this decision was in part based upon the difficulties presented by the evidence of the children. This is further discussed below. 20The respondent's position was that the allegation of sexual abuse by Child 1 of Child S and Child B while the children were in the care of the applicants was serious, and there was evidence upon which a conclusion could be based that the applicants knew of the sexual abuse occurring. Even if the applicants did not know, the evidence overall including the report by Assessments Australia indicates that the applicants do not have protective capacity to ensure the safety of Child 2 and Child 3 if returned to their care. Further, there are outstanding allegations of physical abuse pending investigation by the reportable conduct unit. The children are said to be doing well in the alternative care placement.