AHD and AHE v William Campbell College And AHD and AHE v Department of Family and Community Services
[2013] NSWADT 98
•08 May 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AHD and AHE v William Campbell College And AHD and AHE v Department of Family & Community Services [2013] NSWADT 98 Hearing dates: 21, 22 and 23 May 201225 July 201231 August 20125 October 2012 Decision date: 08 May 2013 Jurisdiction: Community Services Division Before: Principal judgment Decision: 1. That the decision made by the respondent, Department of Family and Community Services, to permanently remove the children from the care of the applicants is affirmed.
2. That the decision made by William Campbell College to cancel the authorisation of AHD and AHE is affirmed.
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998
Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2003
Children and Young Persons (Care and Protection) Regulation 2012
Administrative Decision Tribunal Act 1997Cases Cited: YG & GG v Minister for Community Services [2002] NSWCA 246 Category: Principal judgment Parties: AHD (Applicant in person)
AHE (Applicant in person)
William Campbell Foundation (Respondent in 124003)
Department of Family and Community Services (Respondent in 114043)
F Ainsworth (Guardian Ad Litem)Representation: Counsel
S Kluss (Respondent in 124003)
AHD (Applicant in person)
AHE (Applicant in person)
L Miller (Respondent in 124003)
McCabe Terrill Lawyers (Respondent in 114043)
K Rutkowska (Guardian Ad Litem)
File Number(s): 124003, 114043 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
reasons for decision
ORDERS
That the decision made by the respondent, Department of Family and Community Services, to permanently remove the children from the care of the applicants is affirmed.
That the decision made by William Campbell College to cancel the authorisation of AHD and AHE is affirmed.
HISTORY
The applicants are authorised carers under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). They are husband and wife. In these reasons for decision, the male carer will be referred to "AHE". The female carer will be referred to as "AHD". (See Section 126 of the Administrative Decisions Tribunal Act 1997).
The respondent, William Campbell Foundation ("WCF") is a designated agency for children in out of home care. The respondent, Department of Family and Community Services ("CS") is the New South Wales State Government body that co-ordinates and manages the arrangements for children the subject of orders made in the Children's Court with respect to their care and protection.
The children the subject of the care orders have also not been identified. On 6 February 2009 final orders were made at the Port Kembla Children's Court allocating parental responsibility to the Minister Department of Community Services until the ages of 18 years of the children AA DOB: 31/12/95, AB DOB:12/1/99, AC DOB 21/3/01, AD DOB 17/3/03. At the time of hearing these proceedings in 2012 the children were respectively 17, 13, 11 and 9.
On 8 July 2008 AA, AB, AC and AD having been taken into care by the CS, were placed with the applicants.
On 18 January 2010 AE was born. She is the sister of the children. She was placed with the applicants on 28 January 2010. On 15 April 2010 AE was removed from the applicants. The reason removal was at the request of the applicants and based on their concern that AE was having contact with her biological mother. On 16 September 2010 final orders were made at Port Kembla Children's Court allocating parental responsibility to the Minister until 18 years of age with respect to the child AE. On 20 May 2011 AE was placed back into the care of the applicants.
On 23 July 2011 AA's placement with the applicants broke down and she was placed with other WCF authorised carers. On 2 August 2011 CS received a report detailing concerns that AA had raised with her carers regarding her time with the applicants.
On the same day a risk of significant harm report relating to all of the children was completed by Ricky Nolan, Child Protection Officer for WCF.
On 3 August 2011 AA was interviewed by Natalia Hardy (Manager Case Work Out of Home Care/Foster Care Support at CS) and Kristy Wishart (WCF). In that interview AA made a number of statements regarding her treatment whilst in the care of the applicants. The effect of those statements was that AHD had hit AD on more than one occasion, that AHD had behaved towards her as if she was going to hit her, that she was scared of AHD, that AHD had refused to allow her to participate in ballet as she had requested, that when her and her brothers were in trouble they would be grounded, sent to their rooms, do exercises like star jumps and were not to be spoken to by anyone.
On 29 September 2011 staff from CS interviewed the applicants about the allegations raised by AA. The applicants denied the allegations. In that interview, as reported on the face of the file note record tendered by the CS, AHE stated that the most physical contact they would make with AD is to grab him by the arms and turn him around to look at something (e.g. he has denied wetting the bed when there is an obvious wet patch on the bed, so AHE turned him around to point it out). AHD denied the allegations that had been made by AA. She is reported to have said that AA had always been a liar and manipulator and wouldn't acknowledge when she had done something wrong. AHE stated that the children had issues with owning their actions and cited an example where he had caught the boys sliding on the tiles in their jeans but denied it when he confronted them. It is noted that he expressed frustration at being lied to when children denied their actions. AHE indicated his frustration and that he had put in the "hard yards" with AA and that they would not be willing to care for her again in the future if she wanted to come back. It is reported that he said "We're done with her". Both carers are reported to have told CS staff that the boys that were in their care indicated that they don't want to see their sister AA at the moment. They said that AD has big issues with her and said she made her choice. AHD said that her brothers are relieved that she's gone. AHE said they always tried to encourage sibling relationships so they can support each other when they leave care, but unfortunately AA choosing to leave has upset her brothers and they don't want anything to do with her. The carers indicated that they were shocked and offended by the things that AA had said. AHD is reported to have said "It would be nice if she'd acknowledge what we have done for her. This is annoying. I invested too much energy on her. You can tell her that I feel very sad".
On 31 October 2011 AB made a number of statements to his respite carers regarding his care whilst in the placement with the applicants. AB was interviewed on 3 November 2011 by WCF Aboriginal Specialist Case Worker Aaron Stephens and Belinda Campbell, Case Worker Department of CS. In that record of interview AB stated in words to the effect that if the children misbehaved that they would be sent to "the hut" (a type of rumpus room at the rear of the house) and that they would be sent there for the night, that this has happened to AC and AD, that it happened for a long period of time, about 9 hours or something like that and that you get sent to the hut for time out and that it is punishment, that if AD soiled himself he would have to use the cold shower outside, that when you're disciplined when you're grounded you don't get to do anything pretty much, you get sent away from everyone, no one is allowed to speak to you, that you get sent into your room and you're not allowed to speak to anyone whatsoever, that the grounding might last or a week, that with AD it has happened for four weeks 28 days. AB is reported to have stated that when grounded you eat outside or alone in the garage because you won't be part of the family. He stated that he got grounded lots of times, that three days would have been the max, that AD was grounded for four weeks, that when AC and AD were accused of running around a room naked that AHD made them go on the tiles fully stripped and made them kiss the tiles. He further stated that when AHD gets angry she would poke him in the chest and push him back, that the last time he was poked in the chest was just after AA left because he'd lost his jumper and got an after school detention. He stated that he had been grabbed and shaken by AHD. He stated that he would be praised if he did something well, like an award at school. He said AC might get a dollar. He indicated that AD was scared of AHD big time. AC spoke of the two children of the carers 'getting more stuff than us in a year than we would probably get since we've been there...they get to do football'.
On 4 November 2011 Natalia Hardy (CS) made a decision to remove AC, AD and AE from the applicant's care for the following reasons:
a) To ensure the immediate safety needs of the children over the investigation period given the allegations of physical abuse and excessive discipline practices;
b) To enable a planned investigation into the allegations against the carers; and .
c) To minimise the risk that the information obtained from the children was influenced by any other factors.
The children were moved to their respective long term respite placements.
By letter dated 4 November 2011 from WCF to the applicants the allegations against the applicants were identified.
On 7 and 8 November 2011 Belinda Campbell (CS) and Aaron Stephens (WCF) interviewed AD. AD confirmed that when he makes a mistake he is sent to have quiet time in the hut. He said that he'd been sent for a whole day because he'd been naughty. He said that the carer's biological children do not go to the hut but get sent to their rooms when they misbehave. AD stated that when he soils himself he has an outdoor shower, which is a cold shower near the hut. He confirmed that he has never had an inside shower when he's had an accident. He said he gets in trouble for having an accident. He stated that when he wets the bed he is to get up and take his sheets and put them in the yellow basket and take the yellow basket outside and watch TV in the garage. He confirmed that he would get in trouble for wetting his bed and that when he does he has to go to the hut. AD stated that AHD poked him in the chest when he did something really naughty and that it hurts. AD confirmed that AHD sometimes grabbed his arms and shakes him. When that happened it made him feel sad. He confirmed that sometimes when that happened AHD would throw him to the ground. He stated that he had been sworn at by AHD and AHE.
On 8 November 2011 Belinda Campbell (CS) and Aaron Stephens of WCF interviewed AC. The transcript of the interview shows that AC was very hesitant and unsettled in the interview. Little can be made of that interview.
On 8 November 2011 the applicants sought a stay of a reviewable decision and filed an Application for Review of Decision with this Tribunal. By that application they indicated they seek the return to their care of AC and AE only.
On 10 November 2011 Ricky Nolan (WCF) and Natalia Hardy (CS) interviewed the applicants. The applicants denied all of the allegations.
CS determined that on the basis of the allegations and interviews that had occurred with each of the children, the following risk of significant harm concerns were indicated:
a) AB and AD had provided evidence in interview that they had been exposed to physical abuse in the form of grabbing, shaking, chest poking and being thrown to the ground;
b) This was done in a manner that was sufficiently forceful to hurt;
The children spoke of the emotional impact that experiencing this had caused;
c) AB and AD provided evidence in interview that they had been punished in the form of time out/grounding for a period of time, which would not be considered reasonable. These punishments were alleged to have been given for what would be considered minor misbehaviours and not warrant a punishment response;
d) AA and AB had raised concerns that they were not able to freely express their views in the placement and that they were not believed when they were telling the truth;
On 29 November 2011 Natalia Hardy conducted a secondary assessment in relation to the risk of harm to the children returning to the applicants' care. Ms Hardy recommended that the children not return to the long-term placement with the applicants. Ms Hardy's secondary assessment highlighted how the applicants placed a high priority on the needs of their own children over that of the foster children in their care. She further recommended that comprehensive psychosocial assessments be conducted on the children to assist in identifying a better picture of their care needs from a holistic perspective. She made a number of further recommendations regarding sibling placement, culturally appropriate placement options and further review.
The applicants sought an internal review of the decision to move AC and AE from their long-term placement with them. Wendy Ainsworth, manager Client Services at Goulburn CS, undertook the internal review. Natalia Hardy received the internal review on 20 December 2011. Ms Ainsworth was satisfied that the decision to remove the children from the care of the applicants to temporarily change placement while there was an investigation into reportable conduct was the right decision to make.
William Campbell Foundation commenced an investigation into the allegations made against the applicants. The investigation concluded on 16 December 2011 and as a result, a decision was made that the applicants were to be de-authorised as carers. The reasons for the de-authorisation of AHD was identified in correspondence dated 16 December 2011 and states as follows:
"A final finding of sustained has been made with respect to 'reportable allegations' under the Ombudsman Act 1974 of ill treatment involving:
i) the grabbing, shaking and throwing of AD , and
the grabbing and shaking of AB .
ii) the alleged threatening behaviour toward AA. AA claims she was under the belief AHD was going to hit her or otherwise harm her.
iii) poking AD and AB in the chest when you are angry. It is found you poked AD and AB in the chest when you are angry with enough force to hurt them and push them backwards.
The William Campbell Foundation further considered that AHD had acted in breach of the WCF prohibited restricted practices policy and procedures with respect to:
- Corporal punishment
- Physical abuse including hitting and slapping; and
- any form of punishment that is designed to humiliate and frighten.
With respect to the AHD and AHE, the reasons for the de-authorisation are identified in correspondence jointly to them dated 16 December 2011 stating as follows:
Final findings with respect to ill treatment
Sustained - ill treatment involving the application of excessive and inappropriate behaviour management or discipline strategy, namely exclusionary time-out.
Not-sustained - insufficient evidence: Ill-treatment involving swearing at the children.
Not-sustained - insufficient evidence: Ill-treatment involving name calling.
Not reportable conduct: - ill treatment involving allegedly making AC and AD use the outdoor shower when they wet or soil themselves.
An internal review of these decisions was undertaken and a report was prepared on 7 May 2012. The reviewer Sonia Liddicot, Operations Manager for William Campbell Foundation, was satisfied that the decision to de-authorise Tania and Kevin was appropriate.
It is the decision to permanent remove AE and AC from their care and the decision to de-authorise them as fosters carers, that the applicants seek review by this tribunal.
ROLE OF TRIBUNAL
The decision to remove children from the daily care and control of a foster carer and the decision to de-authorise a foster carer are reviewable by this Tribunal. (s 245(1)(a) and (c) Care Act read in conjunction with s. 38 Administrative Decision Tribunal Act 1997 and s 28 Community Services (Complaints, Reviews and Monitoring) Act 1993).
In conducting this review, the Tribunal stands in the shoes of the administrator and is required to determine what is the correct and preferable decision having regard to all relevant material. We may have regard to all material that was relevant at the time the original decision was taken as well as any further material that is relevant as at the time of the hearing (Administrative Decisions Tribunal Act 1997 s 63 and s 115; YG & GG v Minister for Community Services [2002] NSWCA 246 at [25]). On review, we may decide to affirm the decision, to vary the decision, to set aside the decision and make a decision in substitution for it or to set it aside and remit it back to the Administrator (Administrative Decisions Tribunal Act 1997 s 63 (3)).
STATUTORY PROVISIONS
The decisions the subject of these proceedings are decisions taken under the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act") and regulations.
The objects of the Care Act are set out at section 8 and provide as follows:
(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and
(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and
(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.
The principles to be applied in the administration of the Care Act are contained at section 9. We will not set out that section other than to subsection (1) as follows:
(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.
Chapter 8 of the Care Act provides a model for the organisation of out-of-home care for children and young people. Statutory out-of-home care may be provided in respect of a child and young person only by an authorised carer (s136).
The Care Act and Regulations make provision for the making and determination of applications for the authorisation of persons as authorised carers (s 137(2)(a)), for the imposition of conditions of authorisation (s 137(2)(c)) and for the cancellation or suspension of an authorisation (s 137(2)(e)). The Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2003 provides for the authorisation of authorised carers and sets out the requirements and the code of conduct for authorised carers (now repealed and replaced by Children and Young Persons (Care and Protection) Regulation 2012). Regulation 31 provides for the cancellation or suspension of the authorisation of an authorised carer.
The Care Act defines a designated agency as the organisation that arranges the provision of out-of-home care (s 139(1)). The designated agency that places a child or young person in out-of-home care of an authorised carer has a responsibility to supervise the placement (s 140). Pursuant to Chapter 8 Part 4 of the Care Act the authorised carer of a child or young person has defined authority with regard to the daily care and control of the child and with regard to physical discipline of a child or young person.
THE EVIDENCE
The documentary evidence relied upon by the parties in these proceedings was extensive. Oral evidence and submissions were heard over 6 days. Written submissions were filed. The tribunal has had the benefit of a transcript of the proceedings prepared by the parties.
The applicants relied upon affidavit evidence. They were cross-examined.
The applicants made no complaint against either respondent regarding the processes of the investigations. The applicants denied all of the allegations made against them. They could not explain why the children had made the allegations that they made. They contended that the allegations made by the children may have arisen as a result of the questioning of the caseworkers, or that the children were exaggerating. AHE considered that the children may have been lying, that they may be manipulating the situation in order to advance each children's purported desire to reside with the carers absent other siblings. Both carers considered that the allegations made could have been contaminated by one or other of the children. They considered that the children would attempt to 'sabotage one another's placement for the need to be alone with us'.
AHD described offering the children 'thinking time' and opportunities for the children to expend energy through exercise. She did not consider these measures as discipline but as a form of self-discipline. The children perceived the implementation of these measures as discipline. AHD admitted to separating the children from fighting by a bear hug. AHD stated that this form of restraint was verbally agreed by the children's caseworker.
The applicants called a counsellor from Links House. This counsellor had worked with the applicants and the children during 2008/9. This counsellor had more recently been providing counselling to AHD. Evidence was given by this counsellor of strategies put in place in 2009 to assist the children in becoming calm, such as star jumps, breathing, using the trampoline and running around. As the counsellor has had no contact with the children since 2009, her evidence has limited assistance in the context of the allegations made in 2011. It is apparent that the applicants rely on the evidence of the counsellor from Links House as support in their case that they attended to the children's counselling appointments and that they engaged with the counsellor. It is not contended by either respondent that the applicants did not attend to the physical needs of the children.
The applicants called Mr K, a respite carer of one of the children. He gave evidence that the carers were, in his opinion, good carers. It was suggested to him that he had told a caseworker that the carers spoke to the children like dogs. He could not recall making this statement. He did recall stating that the carers' house was like 'boot camp'. He had observed AHE speaking harshly to one of the children. Mrs K also gave evidence. She recalled AHD 'getting stuck into' one of the children, 'that's just how she handles things and he's used to it....it didn't seem to bother him'.
Mr W, the principal of the foster children's school was called. Mr W described a positive relationship with the carers that the carers' involvement with the school was at the 'upper level' of parent involvement with the school. He described one of the children as being challenging in the classroom and playground. He recalled that on one occasion he had heard AHE state to one of the children 'you and your siblings bring shame on me and my family'. He agreed that he had heard the carers speak 'strongly' to the children.
AHD gave evidence that her biological children had their own bedroom. The foster children shared 2 bedrooms. The foster children attended the local state schools. The foster carers' biological children attended different schools. The foster children did not enjoy holidays together with the family. The applicants and their biological children attended holidays separately from the foster children. The carers were given respite one weekend a month. The evidence disclosed that the level of respite offered to the applicants was far in excess of that offered to other foster carers. The biological children of the carers participated in team sports. Despite the increased participation in extracurricular activities and team sport being an agreed outcome in July 2010, on balance, after consideration of all of the evidence it is apparent that the foster children were not encouraged to participate in similar activities. The carers explained the limited attendance in team sport was due to their 'issues'.
On 7 May 2012, as reported in correspondence from AD's carers dated May 8 2012, AD is said to have informed his carers that he was angry at AHD. It is identified in that correspondence the reasons that AD then gave for hating and being angry with Tania. Those reasons included that AHD would lock AC and AD outside in the dark for a long time, that she would grab AD by the shoulders and throw him to the floor, that she would stand AC and AD in the kitchen and tell them how there were other children just waiting to come and take their places with her family, and that she would slap AD.
On the face of the correspondence from AD's carers it is apparent that the statements made by AD were made by him during an apparent angry tirade.
A report from a counsellor who has been seeing AB since April 2012 noted a discussion between himself and AB about AB's experiences in the care of his previous placement, that is, the applicants. The report identifies "following allegations and disclosures" and in summary identifies the following matters - "punishment for wrongdoing was being sent to the hut; punishment cold showers outside, punishment food refusal. His 5-year-old brother AD was taken into a room and hit. Adult carers would call the children "f'ing c's". Adult female carer would poke AB in the chest and throw him but not hit him. Outside, the windows were boarded up and locks placed on the outside of their bedroom doors preventing exit. The carers' children were given free access to the fridge but AB and the siblings were given limited access and only certain things". It is apparent that the session was suspended due to the counsellor observing AB to become noticeably uneasy.
The Operations Manager WCF prepared an audit report with respect to the applicants' carer files.
This audit, completed on 15 May 2012, showed that in August 2006 final assessment reports of the applicants were done showing the applicants as meeting the criteria to become authorised carers. On 4 September 2006 the applicants signed the WCF Code of Conduct and Agreement between WCF and them. In December 2006 the applicants completed training on caring for traumatised children. In April 2008 the applicants completed training on roles and responsibilities and authority and decision-making of FACS WCF Carers and Children in Care.
In June 2008 the applicants completed training on surviving challenging situations. On 8 July 2008 the four children were placed into the care of the applicants.
In June 2010 the Principal of the school that AD was attending contacted WCF in regard to an incident concerning AD at the school. There was a subsequent home visit by WCF at the end of June 2010 where concerns were raised by the children's caseworker. Correspondence was sent to the carers by WCF seeking a meeting to discuss a number of issues including bed-wetting, discipline, the provision of activities for the children, the negative discussion of the children and the general treatment of the children.
A Clinical Psychologist attended the applicants' family home on Friday 22 October 2010. After that attendance, she identified a number of concerns and recommended an in-home assessment of the family.
Andrew Munro, WCF General Manager undertook a placement review in 2010. The placement review highlighted a number of issues that were raised with the applicants pertaining to practices in the home in relation to the children.
Issues identified were as follows:
(a) Soiling/wetting issues
The children were routinely punished for wetting/soiling, AA was not allowed to attend a dancing event, AD being given lines, clean up or miss out on family activities, and AD wearing a baby's nappy to school which caused humiliation.
(b) Discipline issues
Concern was raised where AC was suspended from school and AHE is reported to have said to AC in the presence of the Principal, "you and your siblings are bringing shame on me and my family". AC appeared frightened.
(c) Activities
The children are not provided with sufficient community activities, the applicants appeared resistant to AA's involvement in dancing. The boys were not involved in any team sport despite the applicants' own children being involved.
(d) Negative discussion about the children in front of them
It was noted in the file note from WCF October 2009 the applicants said to AA 'she acts and looks like her mother' 'AB acts like a pig'. Called AA 'stinky winky' called AB 'booger' calling AC 'splat', calling AD 'umbrella' because he's always pissing everywhere. The applicants spoke of the children coming from nothing and that the applicants would not tolerate disrespect.
While the applicants did not agree with all of the issues that were raised, as part of the process they agreed to sign undertakings. It was agreed that when faced with significant issues requiring discipline, the applicants would seek the advice of their WCF caseworker and/or clinical psychologist.
The second respondent WCF called Mr Munro, Ms Liddicoat and Mr Nolan, the child protection officer to give evidence. Mr Nolan detailed his role as child protection officer and he described his qualifications and training. Mr Nolan was the author of the Child Protection Investigation Report and post investigation risk assessment in regard to the carers. He stated that the decision to de-authorise the applicants was made by the CEO of the WCF at his recommendation. He stated that the CS made the decision to remove the children. He referred to the sequence of the disclosures made by the children and he stated that he had undertaken the initial risk assessment investigation and he saw no alternative, in the circumstances, but to remove the children.
Much of the evidence of the carers concerned complaints they had with the respondents and their workers. Most of that evidence is irrelevant for the purposes of the decisions for review before this tribunal. We will however refer to those complaints later in these reasons.
SIBLING CONTACT AND CHILDREN'S CIRCUMSTANCES AT TIME OF HEARING
During the interview between the applicants and the officers of CS and WCF in November 2011, the applicants indicated that the children were far too angry and upset to see AA. Sibling contact did not occur between AA and her brothers and sister until after the children were removed from the applicants on 4 November with the first contact being on 3 December 2011.
Ms Liddicoat provided material concerning the circumstances of the children at the time of the hearing. After AA was removed from the applicants' care on 23 July 2011 she was placed with foster carers until February 2012. She then stated that she wished to leave that placement and she moved to a short term bridging placement for one month. At the time of hearing she had been residing in her current place since March 2012. It is reported that she is comfortable in that placement, that she is attending school and she has a part-time job.
After removal from the applicants on 3 November 2011, AB was placed with his current carers. AB is reported to have a strong bond with his carers. He is undertaking counselling, he plays rugby league and attends school.
After AD was removed from the care of the applicants on 4 November 2011, he was initially placed with his respite carers. This placement broke down in April 2012. He was placed with the same carers who were caring for AE. He remains in this foster placement although there have been incidents of AD exhibiting challenging behaviour. There have been reports that his brother AC has bullied him at school.
After removal from care of the applicants in November, AC was placed with his respite carers. AC expressed a desire to leave those carers. He was placed with a carer from December 2011 to April 2012 when this placement broke down. He was then placed with his current carers in April 2012. On all reports AC appears to be doing well. He is attending school.
After removal of AE from the applicants in November 2011 she was placed with her current carers. This placement is reported as being stable. There were some health issues some time ago; however they appear to have been appropriately attended to.
FINDINGS AND ORDERS
After having had regard to the evidence and submissions and the circumstances of the case, we find that the decisions not to restore the children to the care of the applicants and to de-authorise the applicants are the correct and preferable decisions.
Whilst the investigation undertaken by WCF found the allegations of ill treatment 'sustained', the task for this tribunal is not to make a finding as to whether or not such allegations can or were definitively proven. The paramount concern for this tribunal is the safety and welfare of the children, We have to be satisfied, in the light of the allegations of ill treatment and the other relevant evidence, that children placed with the applicants would not be at risk. In the circumstances, we cannot be satisfied that a child placed into the care of the applicants would not be at risk.
The allegations made by the children in 2011 of physical violence on them by the carer are very serious allegations. In determining whether or not, in light of these allegations, the decisions made by the respondents were the correct and preferable decisions, consideration has to be given the nature of the allegations, the circumstances in which the allegations were made, the nature and content of any response from the applicant to the allegations, and the nature and content of any investigation by the respondent.
After the placement with the applicants broke down in July 2011, AA first raised allegations of physical violence in August 2011. The applicants were interviewed about the allegations in September 2011. They denied any violence or threatening behaviour. In October 2011, AB made a number of statements to his respite carers and was later interviewed. On the basis of that interview, the CS made a decision to remove the children from the placement with the applicants. The allegations made by the children are not inconsistent. AD and AB both speak of being poked and being grabbed and shaken by AHD. There can be no suggestion that any of the children were led in the interviews between them and the caseworkers. The statements made by the children did not, from the transcripts of the interviews, appear rehearsed and the statements were made voluntarily. The suggestion by the applicants that there was a level of concoction amongst the children is, on the evidence, not persuasive.
AA, AB and AD all complain of punishment or of discipline in the form of grounding/timeout that may be excessive or punitive for the nature of the misdemeanour.
The applicants denied the allegations. They contended that the children were lying.
The applicants minimised the concerns raised by the respondents of inequality of treatment between the foster children and the biological children. It was apparent that the applicant's biological children were treated differently to the foster children.
The allegations made in 2011 arise in circumstances where there has been a prior investigation in 2009 into allegations concerning inappropriate language and behaviour by AHD. Further, the respondent WCF raised concerns with the applicants in 2010 regarding a number of issues including inappropriate behaviour management strategies and punishment.
Ms Rutkowska, for the guardian ad litem, informed the tribunal that the child, AC wishes to be restored to the care of the applicant. There is little doubt that AC's view should be considered. Indeed such an approach is prescribed by the Care Act (See subsection ((2)(a)). He was 11 yrs. old at the time of the hearing. However, in the circumstances where we determine that the correct and preferable decision has been made to de-authorise the applicants, it is unnecessary for us to consider the issue any further.
APPLICANTS COMPLAINTS AGAINST THE RESPONDENTS
Much of the applicants' material was directed at their history as carers and their complaints against the respondents - specifically WCF. There was evidence of many positive features of these children's placement with the applicants at the outset. It is apparent that after a period of time the relationship between the applicants and the foster care agency broke down. It is also apparent that after a period of time a number of issues were raised with the applicant's regarding their care of the children.
AHD gave evidence that at one stage she was proposing herself to remove the children from the authority of the WCF. AHD considered that they should have input into the choice of respite carers for the children. AHD expressed dissatisfaction with the children receiving expensive gifts from respite carers as unsettling for the other children. AHD expected that her views regarding the children's contact with their biological parents be observed, such that the applicants stopped the youngest child's first placement with them when that child was having frequent contact with her mother. AHD considered that much of the evidence given by the witnesses for the respondent was either incorrect or that the witnesses were lying. The applicants were critical of caseworker experience. The applicants complained that camps that were previously available to the children were no longer available. The applicants complained that too many caseworkers came to the house too frequently. The applicants expressed concern regarding structural change at the WCF.
There is no doubt that the task of caring for children in out-of-home care is often difficult and challenging. Children and young people, whose lives are the subject of intervention by welfare agencies, are the most vulnerable, neglected and abused in our community presenting with multiple and complex needs. Fosters carers provide an important and essential role in caring for these children and young people in helping to develop capable and independent young people in a safe and secure environment. A designated agency is charged with, amongst other things, the proper assessment, training and supervision of authorised carers. It is fundamental in the provision of the services provided by foster carers that a relationship of trust and accountability between the designated agency and the foster carer be cultivated and maintained especially in an environment where resources to assist these children and young people is limited by both availability and funding constraints. The responsibility for maintaining this relationship of trust and accountability lies both with the foster carer and with the designated agency.
The complaints made by the applicants about the respondents do not, in our view, effect our decision. In light of the serious allegations made by the children of physical violence and ill treatment, the relationship between the applicants and the respondents is of little relevance.
In conclusion, having regard to all of the evidence and submissions with regard to all of the allegations made against the applicants, we find that the respondent's decision not to restore the children to the applicants and to de-authorise the applicants is the correct and preferable decision.
Orders
1. The decision not to restore the subject children to the care of the applicants is affirmed.
2. The decision to revoke the applicant's carer authorisations is affirmed.
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Decision last updated: 08 May 2013