AIO and AIP v Department of Human Services, Community Services
[2012] NSWADT 87
•10 May 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AIO & AIP v Department of Human Services, Community Services [2012] NSWADT 87 Hearing dates: On the papers Decision date: 10 May 2012 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: 1.The Tribunal has jurisdiction to hear and determine this application.
2.On or before 17 May 2012, the respondent to file and serve, pursuant to section 58 of the Administrative Decisions Tribunal Act 1997, a copy of every document or part of a document that is in its possession, or control, that it considers to be relevant to the determination of this application.
3.The application is listed for further directions on 24 May 2012 at 3.30pm.
Catchwords: Review of decision to remove children from care of authorised carer - jurisdiction - whether decision to remove children from a short-term placement is a reviewable decision Legislation Cited: Administrative Decisions Tribunal Act 1997.
Children and Young Persons (Care and Protection) Act 1998
Community Services (Complaints, Reviews and Monitoring) Act 1993Category: Interlocutory applications Parties: AIO & AIP (Applicants)
Department of Human Services, Community Services (Respondent)Representation: AIO & AIP (Applicants in person)
D Menser (Respondent)
File Number(s): 124005 Publication restriction: S 126 of the Administrative Decisions Tribunal Act 1997
REasons for decision
Due to the sensitivity of these proceedings, in these reasons for decision the applicants are referred to by the pseudonym AIO and AIP (see also section 126 of the Administrative Decisions Tribunal Act 1997 (ADT Act)). The children, the subject of these proceedings are also not named or identified.
The applicants, AIO and AIP, seek review of a decision of the respondent to remove two children who had been placed in their care on 23 September 2011. At the time the children were placed into the care of the applicants they were aged three years and six months respectively. Both children were placed into care during March 2011. On 11 August 2011, on the application of the Minister, the Children's Court made final orders allocating parental responsibility for both children to the Minister until they reach 18 years of age.
The applicants are authorised carers under the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). They were authorised through Catholic Care and the placement of the children with the applicants was through this organisation.
On 23 December 2011, the applicants were informed that the children were to be transitioned to a long-term placement with relative carers who had been assessed and authorised by the respondent. On the same day, the applicants sought internal review of this decision. On 6 January 2012, the applicants were informed of the internal review decision, which affirmed the original decision that had been made. The children were removed from the care of the applicants on 12 January 2012. The applicants contend that the children had been placed with them as a long-term placement. They asserted it was a stable placement in which the children's needs of 'attention, love and a nurturing environment was met' and their move to an overcrowded placement with six children would not meet their needs.
The respondent does not question the level of care the applicants provided to the children. However, it contends that the placement of the children with the applicants was a short-term placement and by reason of this the Tribunal has no jurisdiction to hear and determine the applicants' application. The respondent also contends that the current placement is long term and accords with the principles set out in section 9 of the Care Act and the respondent's Placement of Siblings in Out-of-Home Care Policy (the Policy). In this regard I note that the children have been placed with the carer of their half sibling.
By consent, the parties agreed that this matter should be determined as a preliminary issue and that it should be determined on the papers.
In my view, for the reasons set out below, the contentions of the respondent are misconceived and the Tribunal does have jurisdiction to hear and determine this application.
Relevant legislation
The Tribunal's jurisdiction to review a reviewable decision is set out in section 38 of the Administrative Decisions Tribunal Act 1997. The section relevantly provides as follows:
38 Conferral of jurisdiction to review reviewable decisions
(1) Conferral of review jurisdiction
The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or
(b) in the exercise of any other functions of the administrator identified by the enactment.
Note. Section 5 defines enactment to mean:
(a) in relation to a reviewable decision-an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or
(b) in any other case-an Act (other than this Act).
That is, in order for the Tribunal to review a decision of an administrator, an Act, other than the ADT Act, must make provision for the Tribunal to review specific decisions of an administrator that are made under that other Act.
Section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 makes provision for applications to the Tribunal for a review of decisions that are made by an administrator under the Adoption Act 2000, Adoption Information Act 1990, Disability Services Act 1993, the Care Act and other prescribed community welfare legislation. For the purposes of this application the relevant paragraph of that section is paragraph 28(1)(a) which provides that a person may apply to the Tribunal for a review of a decision that is a reviewable decision under section 245 of the Care Act. Section 245 of the Care Act relevantly provides as follows:
245 Decisions that are reviewable by Administrative Decisions Tribunal
(1) For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions made under or for the purposes of this Act or the regulations are reviewable by the Administrative Decisions Tribunal:
(a) ...,
(b) ...,
(c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,
(d) ...
(1A) ...
(1B) For the avoidance of doubt, subsection (1) (c) does not extend to any decision in relation to:
(a) the preparation of a permanency plan, or
(b) the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children's Court.
(2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court.
The issue is whether the decision for which the applicants seek review is a decision that falls within the terms of paragraph 245(1)(c) of the Care Act. That is, whether it is a decision to 'remove' from the applicants 'the responsibility for the daily care and control' of the children the subject of this application. I note that the respondent has not contended that subsections 245(1B) or (2) apply to this application.
The respondent's argument
The respondent's argument is summarised at paragraphs 17 to 20 in the written submissions of Mr Menser, filed, on 30 March 2012, on behalf of the respondent. These are in the following terms:
17. The section [i.e. 245(1)(c) of the Care Act] gives authority to review removal of the responsibility for the daily care and control of a child. The section does not state removal from the placement.
18. The Applicants were not authorised to have responsibility on a long term basis. Therefore responsibility was never removed from them on a long term basis.
19. By nature of the authorisation, the Applicants had responsibility for daily care and control on a short term basis. It is only decisions as to short term responsibility that the applicants are able to seek review of.
20. Because the applicants were not authorised to provide long term care they are not considered authorised carers for the purposes of the section and the decision they seek to have reviewed.
In his written submissions, Mr Menser, goes on to comment on the current placements of the children, the principles set out in section 9 of the Care Act and the Policy in regard to the placement of the siblings in out-of-home care. In my view, these are matters that are relevant to the determination of the merits of this application and have no relevance to the issue of jurisdiction.
Applicants' case
The essence of the applicants' argument is that they were told and therefore understood that the placement of the children in their care was a long-term placement. In support of their contention they provided the Tribunal with a copy of respondent's confirmation of placement notice, dated 25 September 2011, in regard to each child. These notices are in the following terms:
CONFIRMATION OF PLACEMENT
Children And Young Persons (Care and Protection) Act 1998
Sections 49, 138(1), 154(1)
Name of Child [name of child]
Date of birth [date of child's birth]
Carer's name [name of the applicants]
Date of placement 25 September 2011
The child named above is under the parental responsibility of the Minister of the Department of Family and Community Services - Community Services pursuant to section 79 of the Children and Young Persons (Care and Protection) Act 1998. The child is placed with the carer named above.
...
In support of their application the applicants provided a letter from the previous carers of the children and copies of correspondence they received in January and March 2012 concerning the placement of the children with the applicants.
The letter from the previous carers is dated 16 January 2012. The carers explained that the youngest child had been placed into their care 2 days after she was born (i.e. in March 2012). Some weeks after that, the older child, a boy, was also moved into their care with a view to this placement being a long-term placement for both children. This permanent placement was however, subject to an application made by an aunt and uncle of the children not proceeding. The former carers were informed that the aunt and uncle did not press their application and as a consequence the application did not proceed further. While the former carers had wanted to be the long-term carers of the children, their circumstances changed and they informed the respondent of this. The former carers state that they were then informed that a long-term placement had been found with the applicants. They state that from their observations the applicants had provided both children a loving home in which they had continued to grow and develop. They questioned the decision of the respondent to move the children from this home.
The January letter, dated 19 January 2012, is a letter, on Catholic Care letterhead, but written by the respondent's Case Work Manager, Out of Home Care, Ms Mitchell. In that letter, Ms Mitchell summarised the events in regard to the placement of the children with the applicants. According to this summary, initially Catholic Care was advised that the placement would be permanent. However, later the same day the respondent informed Catholic Care that a family placement assessment was still being done and that the placement may in fact not be long-term. On 23 November 2011, the respondent advised Catholic Care that they were not assessing the 'aunt' and that 'they were assessing the current carer.' On 23 December 2012, the respondent informed the applicants that alternate carers had been approved as long-term carers for the children.
The March letter, dated 15 March 2012, is also on Catholic Care letterhead. It is written by Kim Jenkins, OOHC Case Manager. In that letter, Kim Jenkins states that she had spoken to the applicants on 23 September 2011 and that she had explained to the applicants that the terms of the placement was no longer long-term as a relative was being assessed by the respondent. Ms Jenkins explained that notwithstanding this, the applicants accepted the placement on the basis that it might be short-term only.
Consideration
It is necessary to first set out the relevant provisions of Chapter 8 of the Care Act, which contains provisions regulating 'out-of-home care'. The objects of this Chapter are set out in section 134, which provides as follows:
134 Objects of this Chapter
The objects of this Chapter are:
(a) to create a high standard in the provision of out-of-home care, and
(b) to provide a model for the organisation of out-of-home care, and
(c) to clarify the roles and responsibilities of those involved in the provision of out-of-home care.
There are three types of 'out-of-home care', which is defined in section 135 of the Care Act as follows:
135 Definition and types of "out-of-home care"
(1) For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided:
(a) by a person other than a parent of the child or young person, and
(b) at a place other than the usual home of the child or young person,
whether or not for fee, gain or reward.
(2) There are 3 types of out-of-home care for the purposes of this Act, as follows:
(a) statutory out-of-home care-see section 135A,
(b) supported out-of-home care-see section 135B,
(c) voluntary out-of-home care-see section 135C.
(3) ...
In his written submissions, Mr Menser made no reference to the provisions in the Care Act in regard to 'out-of-home care' and their application to this application. However, as mentioned above, the placement notices, given to the applicants, when the children were placed in their care, made reference to sections 49, 138(1) and 154 of the Care Act. Section 49 provides as follows:
49 Care of child or young person pending care proceedings
(1) If a child or young person is removed from the care of his or her parent or parents under this Part or a warrant issued under section 233:
(a) the child or young person is to be kept at a place approved by the Minister for the purposes of this section, and
(b) the Director-General has the care responsibility for the child or young person.
(2) The Children's Court may, by order, vest the care responsibility in a designated agency.
(3) The Director-General or designated agency having the care responsibility for the child or young person may delegate that responsibility to a relative of the child or young person, an authorised carer or a person approved by the Children's Guardian.
(4) Despite subsection (3), the Director-General may delegate the care responsibility for the child or young person on an interim basis to a person other than a person specified in subsection (3) but must use his or her best endeavours to delegate that responsibility to a person so specified as soon as is reasonably practicable.
(5) The exercise of the care responsibility by a person referred to in subsection (3) or (4) is subject to any direction given to the person by the Director-General or the designated agency that made the delegation.
Section 49 is in Chapter 5 of the Care Act and it contains provisions in regard to care proceedings before the Children's Court. Sections 43 and 44 make provision for the Director-General to remove children in circumstances of urgency and where a child is removed pursuant to these provisions, section 45 requires the Director-General to initiate care proceedings within three working days of the removal. Section 49 merely makes provision as to who is vested with 'care' responsibility of the child while those proceedings are on foot. It would appear to have no relevance to the circumstances of this application as at the time the children were placed with the applicants there were no pending care proceedings before the Children's Court. Final orders were made in regard to those proceedings before the children were placed into the care of the applicants. Final orders had also been made prior to the date of the placement notices given to the applicants.
Subsection 138(1) of the Care Act provides that only a designated agency, or the Children's Guardian can make arrangements for statutory or supported out-of-home care. A designated agency is defined in subsection 139(1) to include:
'a Division of the Government Service' and an organisation (accredited under the regulations) to arrange for out-of-home care.
Subsection 154(1) of the Care Act provides that supported out-of-home care can only be provided by the Director-General or an authorised carer. Supported out-of-home care is defined in section 135B to mean:
'out-of-home care in respect of a child or young person that is, as a result of the Director-General forming the opinion that the child or young person is in need of care and protection, arranged, provided or otherwise supported by the Director-General under Part 3 of this Chapter'.
Part 3 of Chapter 8 makes provision for two types of out-of-home care arrangements. These are 'temporary care arrangements' (sections 151 and 152) or 'other arrangement' (section 153). These are both short-term in nature, in that they apply to circumstances where the Director-General forms an opinion that a child is in need of care and protection.
On the other hand, 'statutory out-of-home care' is day-to-day care that is provided in respect of a child for a period of more than 14 days, pursuant to a 'care order' of the Children's Court (see section 135A of the Care Act). A 'care order' is defined in section 60 to mean:
' ... an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86.'
For the purpose of section 60, the relevant Chapter is Chapter 5, which deals with proceedings before the Children's Court. Section 46 makes provision for the Children's Court to make an order for the emergency care and protection of a child where it is satisfied that the child is at risk of serious harm. Where care proceedings are initiated in the Children's Court, sections 69 and 70 provide that the Court can make interim care orders, pending the outcome of those proceedings. Section 79 of the Care Act makes provision for final orders, in terms of allocating parental responsibility for a child that the Children's Court finds to be in need of care and protection. The Court has power to allocate parental responsibility on one parent exclusively, to the parents and the Minister jointly, to another suitable person(s), or the Minister. Furthermore, the Court has power to make an order in respect of specific aspects of parental responsibility, including residence.
In general, only the respondent Director-General can initiate care proceedings; see section 61(1). As part of those proceedings the Director-General is required to prepare a 'care plan': see section 78. That plan is required to contain information about the kind of 'placement' (i.e. permanent placement) that is proposed to be made for the child the subject of the proceedings: see paragraph 78(2)(b) and section 78A (permanency planning) of the Care Act. However, a care plan is not enforceable unless it is embodied in or approved by the Children's Court in its final orders: see subsection 78(4). I assume the care plan, in regard to the children the subject of this application, were not embodied in or approved by the Children's Court in the final orders it made for each child in August 2011, as a copy of those orders were not filed or served. This is not unusual as it gives the Director-General, on behalf of the Minister, greater flexibility to ensure that, throughout the period for which the Minister has been allocated parental responsibility, a child can be placed, in accordance with the principles set out in section 9 of the Care Act, with the an authorised carer who can best meet the child's ongoing day to day needs. An early permanent placement is of course desirable but not always possible.
In my view, on its proper construction, paragraph 245(1)(c) of the Care Act, placement with an authorised carer long term or short term is of no relevance to the issue of jurisdiction. That paragraph does not make reference to, let alone distinguish between, decisions about removal of a child from an authorised carer in a long-term or short-term placement. Instead it refers to the removal of a child from an authorised carer with the 'responsibility for the daily care and control' of a child. As subsection 135(1) makes clear, an authorised carer obtains such a responsibility when a child is placed into their care pursuant to one of the 'out-of-home care' categories in Chapter 8 of the Care Act. These responsibilities arise regardless of whether the placement was short or long term. However, the basis on which the placement was made may be a relevant factor when reviewing the decision to remove the child from that placement. The only matter going to jurisdiction is whether, at the time of the removal decision, the authorised carer had the responsibility for the daily care and control of the child in their care. This the applicants clearly had.
In this application, I accept that there was a lack of clarity about the basis on which the children were place in the applicants care. There was clearly a breakdown in communications with the applicants. The placement notices of the respondent did not assist. Had there been clearer communications, the applicants may have taken a different view when informed about the removal of the children.
In conclusion, for the reasons set out above, I find that the Tribunal has jurisdiction to hear and determine this application. On the basis of my findings, I make orders for the matter to be listed for further directions and that the respondent file and serve, pursuant to section 58 of the Administrative Decisions Tribunal Act 1997, a copy of every document or part of a document that is in its possession, or control, that it considers to be relevant to the determination of this application.
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Decision last updated: 10 May 2012
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