Archer (A Pseudonym) v Chief Executive of the Department for Child Protection

[2022] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

ARCHER (A PSEUDONYM) v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2022] SASC 94

Judgment of the Honourable Justice Blue  

30 August 2022

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN

Appeal against an order by the South Australian Civil and Administrative Tribunal affirming a decision by a delegate of the respondent to remove two children from the appellants care pursuant to section 84(1)(c) of the Children and Young People (Safety) Act 2017 (SA).

The children were removed by the Department from the custody of their mother shortly after birth in 2009 and 2014 respectively and placed in the care of the appellants. They were placed under the guardianship of the Minister (later the respondent Chief Executive) until they turn 18 years old.

In January 2021, pursuant to section 84(1) of the Act, the children were removed by the respondent from the care of the appellants and placed in a residential facility. The review by the Tribunal affirmed that decision.

The Archers appeal against the Tribunal’s decision on 7 grounds.

Held (allowing the appeal):

1.  The Tribunal did not fail to differentiate between harm that is an ordinary aspect of transition from childhood to adulthood or otherwise a vicissitude of life and harm arising from the care of the appellants (at [238]).

2.   The Tribunal’s finding that the children suffered harm as defined in the Act from the care of the Archers was not unreasonable or not supported by the evidence (at [260]).

3.     The Tribunal did not err in placing weight on the memorandum prepared by the Department in the course of the making of the decision by the delegate of the Chief Executive (at [271]).

4.     The Tribunal did not fail to give due weight to the wishes of the elder child (at [283]).

5.    The Tribunal erred in failing to request evidence or making findings as to the harm likely to be caused to the children in question by breaking the primary attachment (at [307]).

6.    The Tribunal erred in failing to request evidence or make findings as to alternative placements of the children and in particular as to the prospects and timing of a placement with alternative carers as opposed to in a residential facility (at [399]).

7.    Appeal allowed; decision set aside and matter remitted to the Tribunal for rehearing (at [404]).

Children and Young People (Safety) Act 2017 (SA) s 4, s 5, s 7, s 8, s 10, s 11, s 16(1), s 17, s 18, s 34, s 37, s 39, s 40(1), s 41, s 42, s 43, s 44, s 45, s 50(4), s 53, s 54, s 55, s 68, s 69, s 71, s 72, s 77, s 84, s 84(1), s 84(1)(c), s 91, s 103, s 157, s 158, s 159; Children's Protection Act 1993 (SA) s 51(2); Child Safety (Prohibited Persons) Act 2016 (SA) s 16; Criminal Procedure Act 1921 (SA) s 158(1)(a); Family and Community Services Act 1972 (SA) s 36, s 43; Family Law Act 1975 (Cth) s 4(1), s 61B; Guardianship of Infants Act 1940 (SA) s 4, s 6(1), s 7, s 12, s 13, s 21; Matrimonial Causes Act 1945 (Cth) s 3(1), s 5(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 35, s 37(1), s 38, s 39(1), s 40, s 42, s 43, s 71(2), referred to.
Capodici v Capodici (1967) 12 FLR 129; Fountain v Alexander (1982) 150 CLR 615; Hewer v Bryant [1969] 3 All ER 578; Wedd v Wedd [1948] SASR 104; Youngman v Lawson [1981] 1 NSWLR 439, considered.

ARCHER (A PSEUDONYM) v CHIEF EXECUTIVE OF THE DEPARTMENT FOR CHILD PROTECTION

[2022] SASC 94

1. BLUE J: The appellants Mr and Mrs Archer (a pseudonym) appeal, and seek leave to appeal, against an order by the South Australian Civil and Administrative Tribunal affirming a decision by a delegate of the respondent, the Chief Executive of the Department for Child Protection, to remove George (a pseudonym) and Louis (a pseudonym) from their care pursuant to section 84(1)(c) of the Children and Young People (Safety) Act 2017 (SA) (the Act).

2. George was born in 2009 and Louis was born in 2014. They were each removed by the responsible Department from the custody of their mother and placed in the care of Mr and Mrs Archer. They were placed under the guardianship of the responsible Minister (now the Chief Executive) ultimately until they turn 18 years old.

3. In January 2021, pursuant to section 84(1) of the Act, George and Louis were removed by the Chief Executive from the care of the Archers and placed in a residential facility. An internal review affirmed the decision. A subsequent review by the Tribunal also affirmed the decision.

4. The Archers appeal against the Tribunal’s decision on the following grounds:

   1The Tribunal erred in finding that what the Tribunal described as the cumulative effect of the deficits in the Archers’ care of the children that had resulted in harm comprised “harm” for the purposes of the Act by failing to differentiate between harm that is an ordinary aspect of transition from childhood to adulthood or otherwise a vicissitude of life and harm arising from the care of the Archers.

   2The Tribunal’s finding, such that it was made, that the children suffered harm as defined in the Act from the care of the Archers was unreasonable and not supported by the evidence.

   3The Tribunal erred in placing any weight on the January 2021 internal memorandum prepared by the Department in the course of the making of the decision by the delegate of the Chief Executive.

   4The Tribunal erred in failing to remit the decision to the original decision-maker to be remade according to law with all of the relevant information including evidence as to the harm that may be caused to the children by breaking a primary attachment with their long-term care givers.

   5The Tribunal erred in relying on its specialist knowledge as to the harm caused by breaking a primary attachment with their long-term care givers in substitution for evidence as to the harm caused by breaking the primary attachment of the children to the Archers.

   6The Tribunal erred in making its decision in failing to give due weight to the wishes of George.

   7The Tribunal erred in making its decision by failing to consider that leaving the children in the custody of the Chief Executive is the least preferred option under the Act.

   Background

5. In 1991 Mr and Mrs Archer were married at the age of 24. They subsequently had three children.

6. In 2009 Mr and Mrs Archer became approved foster carers under section 43 of the Family and Community Services Act 1972 (SA).[1]

   [1]     The concept of an approved foster carer was replaced upon the enactment of the Children and Young People (Safety) Act 2017 (SA) by the concept of an approved carer under section 72 of the Act.

7. The name of the Department responsible for child development has changed over the years. In 2011 it became the Department for Education and Child Development and then the Department for Child Protection. For ease of reference, I refer to the responsible Department at any given time simply as the Department. I refer to the Minister responsible for administration of the Act and its predecessor as the Minister.

8. In 2009 George was born. When he was five days old, he was removed by the Department from the custody of his biological mother and placed in the care of Mr and Mrs Archer. He was placed under the guardianship of the Minister, initially for 12 month periods and then in March 2013 until he turns 18 years old.

9. In 2014 Louis was born. George and Louis have the same biological mother and different biological fathers. When Louis was eight weeks old, he was removed by the Department from the custody of his mother and placed in the care of Mr and Mrs Archer. He was placed under the guardianship of the Minister, initially for 12 months, and then in March 2015 until he turns 18 years old.

10. Over the years the Department undertook annual reviews of the placements of George and Louis. When care concerns were raised by or brought to the attention of the Department (which it categorised as minor, moderate or serious), an investigation was undertaken and a report prepared by the Department. These reviews and investigations usually entailed meetings or other communications between officers of the Department and employees of Anglican Community Care Inc (Anglican Care) and Mr and Mrs Archer. There were also other meetings from time to time between officers of the Department and/or employees of Anglican Care and Mr and Mrs Archer.

11. Over the years Mrs Archer, and to a lesser extent Mr Archer, undertook courses addressing matters relevant to carers generally or matters relevant to carers caring for children with special needs such as those of George and Louis. Without being exhaustive in the case of Mrs Archer, those courses included the following:

Year	Mrs Archer	Mr Archer
2009	Infant Training
2012	Circle of Security – Parenting Program
Autism Training
2013	Disabilities Awareness Program Certificate 4 TAE TAFE Course
2014	Understanding Autism
Provide Support to Students with Autism Spectrum Disorder
Marte Meo – Supporting Social and Emotional Development
2015	Marte Meo Practitioner – Lecturer (one year course)
Address Language and Literacy and Numeracy Skills
2016	Talking Literacy at Home
Towards Tomorrow Conference Course – Chris Ulmer -Engaging Neuro-Diverse Individuals
Yin Personal Safety, Personal Power
2017	Provide Support to Students with Autism Spectrum Disorder
Support Students with Additional Needs in the Classroom Environment
Support the Development of Literacy and Oral Language Skills
2018	Preventing and Responding to Challenging Behaviour
Making a Difference Disability
Techniques for Stress and Anxiety
Child-Safe Environments – Our Community Response to Child Abuse and Neglect
St John First Aid
2019	Therapeutic Parenting & Supporting Traumatised Children with Bryan Post	Therapeutic Parenting & Supporting Traumatised Children with Bryan Post
2020	Mental Health First Aid Australia
Managing Mental Health Risks at Work
Positive Behaviour Support – Supporting Positive Behaviour

1. In January 2010 a care concern was received by the Department expressing concern that Mrs Archer took George into her bed when he was unsettled. The care concern was categorised by the Department as minor. There is no evidence of any “finding” or conclusion by the Department (substantiated or not substantiated) in relation to it. Care concerns were not contemporaneously numbered by the Department but I number them in chronological order for ease of identification. I number the January 2010 care concern as concern 1.

2. Between 2009 and 2012 there were several attempts at reunification of George with his biological mother. These were unsuccessful. Ultimately in 2012 they were abandoned.

3. In 2011 George was diagnosed as having Level 2 Autism Spectrum Disorder. In 2018 he was diagnosed as also having Attention Deficit Hyperactivity Disorder.

4. In August 2012 a care concern (concern 2) was received by the Department about drug use by one of the Archers’ biological children, assault by him on their other biological children, the attendance of the police and ambulance service at the family home and the possibility that George witnessed these traumatic events. The care concern was categorised by the Department as minor. The Department interviewed George and concluded that he had not witnessed these events other than perhaps hearing some yelling. The care concern was not regarded by the Department as substantiated.

5. In 2013 George commenced kindergarten.

6. At some stage George and Mrs Archer commenced receiving psychological support from a psychologist, Vanessa Bayliss.

7. Before George commenced at kindergarten, he had already displayed difficult behaviours and this increased on his commencing at kindergarten and continued when he commenced at primary school.

8. George experienced delayed speech and language development with ongoing needs regarding the use of language in social interactions and more general developmental delay with academic and learning difficulties. He displayed rigid and illogical thought processes, poor judgment, an inability to consider other people’s perspectives and feelings, deficits in focused attention such as struggling to remain still and sensitivity to certain touch and auditory stimuli.

9. George’s difficult behaviours included:

   ·difficulties with eating various foods with consequent dietary and nutritional issues;

   ·toileting and soiling issues;

   ·behavioural issues, severe anxiety and an inability to regulate his emotions;

   ·frequent aggressive behaviour with hitting, punching and biting as well as yelling, swearing, violent and disturbing language; and

   ·social isolation due to an inability to develop friendships and peer relationships.

10. In 2014 Louis was born and removed from the custody of his mother and placed in the care of Mr and Mrs Archer.

11. Louis experienced physical afflictions from an early age. He demonstrated weakness on the left side of his body and experienced seizures commencing in 2014. He has a history of respiratory issues and has been diagnosed with mild asthma. In 2018 he was diagnosed as having Attention Deficit Hyperactivity Disorder and a mild intellectual disability. In 2019 he was diagnosed as having Oppositional Defiance Disorder. In 2020 he was diagnosed as having low functioning Autism Spectrum Disorder.

12. Louis required speech pathology intervention due to delayed swallowing, feeding issues and delayed communication abilities. He had sensory issues, disliking loud noises and tending to walk on his toes.

13. Louis displayed difficult behaviours from an early age. These behaviours included:

    ·aggressive behaviour such as head-butting, pushing, kicking, hitting and biting others;

    ·difficulties in focusing, concentrating or sitting still for long periods;

    ·running away from home and school;

    ·yelling, screaming and swearing excessively and using conversation marked by aggressive themes;

    ·difficulties in forming peer relationships resulting in his being socially isolated and lonely at school.

14. There was also continuing extreme physical and verbal aggression displayed by George and Louis towards each other.

15. Over the years, George and Louis have attended consultations and received treatment from various medical professionals, including psychologists, speech therapists, occupational therapists, paediatricians and dietitians. They received treatment under a National Disability Insurance Scheme plan. They each have a school support officer in the classroom. In addition, the Archers were supported by professional workers from Anglican Care.

16. In 2015 George commenced at primary school.

17. In February and March 2015 two care concerns (concerns 3 and 4) were received by the Department about varying levels of medication that had been given to George and various other matters, including that Mrs Archer breached George’s confidentiality. The care concerns were categorised by the Department as moderate. The Department interviewed Mrs Archer, who admitted breaching George’s confidentiality and apologised but otherwise denied the allegations. The care concerns were not regarded by the Department as substantiated, other than in respect of the breach of confidentiality. It was observed that Mrs Archer was vulnerable to ongoing mental health issues.

18. In April and May 2016 two care concerns (concerns 5 and 6) were received by the Department that George had said that Mrs Archer hurt his bottom when wiping him vigorously after going to the toilet; Mr Archer pinched his ear, pushed him against the wall, hit and punched him; on occasions he was locked in his bedroom or outside; and he felt that he was not being listened to by Mr Archer and Mrs Archer. The care concerns were categorised by the Department as moderate. The Department interviewed Mr and Mrs Archer who denied the allegations.

19. The Department chose not to take an investigative approach to the care concerns because there had been no forensic medical assessment of George’s injuries. Instead, the Department took an assessment approach. The assessment by the Department identified concerns that the household was under immense stress and concerns regarding Mrs Archer’s personal functioning and parenting of the children which had the potential to negatively affect their safety and well-being. It was recommended that there be a referral to the Department’s Psychological Services for a parenting capacity assessment.

20. In October and November 2016, Joanne Humphreys, a psychologist employed in the Department’s Psychological Services team, interviewed George, Mr Archer, Mrs Archer, George’s psychologist Ms Bayliss, Louis’s child care worker and speech pathologists, primary school staff and Department staff. She observed Mr and Mrs Archer with George and Louis at home. Ms Humphreys also administered formal psychological assessment tools to George and Mr and Mrs Archer. She was provided by the Department with numerous reports by medical professionals.

21. In December 2016 Ms Humphreys prepared a comprehensive psychological report. In her conclusions, she said that numerous positives were identified in relation to the parenting capacity of the Archers. However, there were several factors impacting their ability to provide the children with the emotionally attuned and responsive caregiving that they needed. The Archers demonstrated a pattern of externalising blame for the children’s challenging behaviours or previous challenges of working with service providers. They struggled to reflect on, consider and take responsibility for their own parenting deficits. Ms Humphreys expressed the opinion that, when required to self-reflect, Mrs Archer’s defensiveness and resistance to engage with external services escalated, impacting her engaging with external services and implementation by the Archers of strategies for George. Concern was expressed regarding the ability of the Archers to remain present with George and provide him with attuned and responsive care during distress. Ms Humphreys expressed the opinion that, in the case of Mrs Archer, this was closely linked to her own childhood experiences.

22. Ms Humphreys expressed the opinion that George’s extensive emotional and behavioural difficulties adversely affected Mrs Archer’s views and core beliefs regarding herself and her parenting abilities, and she overcompensated by externalising responsibility, defecting blame or becoming defensive. Ms Humphreys expressed the opinion that the physically and emotionally demanding nature of caring for George and Louis resulted in the Archers being at risk of developing “blocked care”. That is, that the stress of caring for George had suppressed their capacity to maintain and provide feelings of love and empathy towards George. She expressed the opinion that there was a risk that Louis would begin to display similar emotional and behavioural difficulties as George was displaying if he was not provided with attuned and responsive caregiving.

23. Ms Humphreys recommended, amongst other things, that Mr Archer attend therapy with George and Mrs Archer to improve his insight into and willingness to use the recommended strategies for George and that Mrs Archer engage with a therapist with experience working with caregivers to increase her insight into how her childhood experiences had shaped her emotional functioning, parenting and relating to others.

1. Subsequently, the Department identified a therapist with experience working with caregivers to implement Ms Humphreys’ recommendation that Mrs Archer engage with such a therapist to increase her insight. Mrs Archer declined to work with the therapist and instead engaged a mental health nurse who the Department considered did not have the requisite skills or expertise.

2. In March 2017 Dr Careen Lindsay took over from Ms Baylis as the psychologist consulted by George and Mrs Archer. This followed a request by the Archers for a change in psychologist. In July 2017 Susan Shaw took over from another social worker as the social worker at the Department responsible in respect of George and Louis.

3. In 2018 Louis commenced kindergarten.

4. In May 2018 a care concern (concern 7) was raised by the Department that George had reported that Mr Archer was physically and verbally aggressive towards Mrs Archer; that Mr Archer was angry, shouting, hitting and smacking everyone with an open hand; that George was left by himself segregated from the rest of the house for prolonged periods; and that George tried to hide from Mr Archer and protect Louis from him. Concern was expressed by the notifier about Mrs Archer’s mental health, that her own emotional needs were not being met and that she used the children to meet those needs and did not always act in the best interests of the children or meet their emotional needs. The care concern was categorised by the Department as moderate.

5. The Department concluded that George and Louis were exposed to domestic violence perpetrated by Mr Archer against Mrs Archer and were exposed to physical abuse by Mr Archer; this was a role model for George and Louis potentially to act violently themselves; Mr Archer smacked Louis on the bottom; George was isolated and segregated in the home by child safety gates; George and Louis were allowed to make adult decisions; the Archers did not appropriately support the children’s relationship and interactions with each other; and Mr and Mrs Archer’s mental health issues impacted on their emotional availability and responsiveness to the children and did not meet the children’s emotional needs.

6. In June 2018 a care concern (concern 8) was raised by the Department about Louis and another child (whose siblings had been subjected to sexual abuse) displaying sexualised behaviour towards each other at childcare. The care concern was categorised by the Department as moderate. The Department concluded that there was no evidence that George or Louis had been sexually abused by Mr or Mrs Archer. However, the Department concluded that Mr and Mrs Archer failed to provide emotional support to the children, failed to notify the Department of Louis’ sexualised behaviour and this, coupled with the children’s other behavioural issues, entailed that there were deficits in their care.

7. In June 2018 a further care concern (concern 9) was raised by the Department about the Archers failing to prioritise the children’s oral hygiene, involving a lack of brushing and poor diet, resulting in tooth decay. George had one tooth extracted and dental treatment to a further 11 teeth in December 2017. Louis had 10 teeth extracted and dental treatment to a further six teeth in March 2018. The care concern was categorised by the Department as moderate. The Department concluded, based on professional dental opinion, that the Archers had neglected the children’s oral hygiene. The Department informed the Archers by letter on 3 February 2020 that the care concern had been addressed and was now considered closed.

8. In July 2018 the Department placed George and Louis in a commercial care placement for three weeks to provide respite care. There was an observed improvement by George’s school in regard to his emotional well-being and behaviour at school while in respite care and observed deterioration after returning to the care of the Archers.

9. In August 2018 the Department implemented a comprehensive case plan in consultation with the Archers and Anglican Care. It included Mr and Mrs Archer engaging in therapy with a focus on increasing their insight into domestic violence; improving their emotional functioning, mental health issues and ways of relating to others; engaging in sessions with a psychologist Ivan Raymond; and engaging in therapy sessions with Dr Lindsay.

10. Subsequently Mr Archer attended some sessions with a therapist and with Mr Raymond but his engagement was assessed as superficial and lacking meaningful engagement. By contrast, Mrs Archer meaningfully engaged with the services, resulting in an improvement in her mental health and emotional regulation and in the engagement by both Mr and Mrs Archer with the Department and other professionals. There was also an improvement in George’s emotional regulation and functioning.

11. In March 2019 a care concern (concern 10) was raised by the Department about Louis and another child displaying sexualised behaviour towards each other at kindergarten. The care concern was categorised by the Department as minor. The Department made no adverse conclusion in relation to parenting in respect of this care concern. The Department informed the Archers by letter on 3 February 2020 that the care concern had been addressed and was considered closed by the Department.

12. In 2020 Louis commenced at primary school.

13. In February 2020 a care concern (concern 11) was raised by the Department about George and Louis being locked in their bedrooms when Louis had a tantrum and became violent. The care concern was categorised by the Department as minor. The Department made no adverse conclusion in relation to parenting in respect of this care concern.

14. In March 2020 the Department completed the 2020 annual review. The Case Manager Questionnaire was completed by Ms Shaw and favourably assessed the care being provided by the Archers, referring to improvements made by them since the previous annual review. Her assessment was summarised by the Tribunal in its reasons in the following terms:

    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. 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.

    Ms Shaw noted that the Archers were working more cooperatively with the Department and ac.care and that “[George] 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 [Mr and Mrs Archer] were “actively supporting [Louis] and working with services to improve his well-being”. Ms Shaw noted “All previous concerns regarding the parenting environment afforded to [George and Louis] by [Mr and Mrs Archer] have been addressed. DCP do not currently have any concerns regarding [Mr and Mrs Archer]’s care of the children.” [2]

    [2]     Emphasis in original.

15. Over the course of 2020 Louis was observed to struggle with his transition to school, displaying verbally and physically aggressive and violent behaviour at school. Dr Lindsay formed the opinion that the Archers did not adequately prepare Louis for school. Louis began to wander off into neighbouring properties. There was an observed deterioration in George’s emotional functioning and behaviours, including increasing emotionally and physically violent behaviour at school.

16. In July 2020 Louis commenced attending individual therapy sessions with a social worker, Anita Franklin.

17. In September 2020 two care concerns (concerns 12 and 13) were received by the Department about George being observed with bruising on his arms, George stating that he was trying to protect Louis when Mr Archer grabbed him and dragged him to his bedroom; and Louis being observed with bruising on his legs, Louis stating that Mr Archer kicked him. The care concerns were categorised by the Department as serious.

18. On 15 September 2020, as a result of the care concerns, the Department implemented a safety plan that included Mr Archer agreeing to leave the family home and not have contact with the children during the investigation process. On 17 September 2020 the safety plan was modified by adding a condition that neither Mr Archer nor Mrs Archer speak to the children about the concerns.

19. The investigation was undertaken by the Department’s Care Concern Investigation Unit Senior Investigator, Kerstin Wojciechowski. Those within the Department responsible for the care of George and Louis (such as Ms Shaw) were not involved in the investigation.

20. Despite the safety plan requiring Mr and Mrs Archer not to speak to the children about the allegations, it was reported that Mrs Archer spoke to George about his bruising and reminded him that he had been bitten by Louis on the previous weekend and, following this conversation, George changed his account of what had happened.

21. George was medically examined by a paediatrician, who assessed that his injuries were inflicted and not accidental and were not consistent with bite marks. Louis was also medically examined by the paediatrician, who assessed that his injuries were inflicted and not accidental. Louis reported to the paediatrician and to Ms Shaw that Mr Archer had kicked him hard while wearing his work boots.

22. The police also conducted an investigation. They attempted to interview George. George informed Ms Shaw that Mrs Archer told him and Louis that they were not allowed to talk about it anymore. Mrs Archer admitted saying this.

23. On the following day, George was interviewed by the police, during which he appeared very uncomfortable and anxious. He said that Louis bit him in that area and Mr Archer grabbed him in that area so all he knew was that the bruising was caused by either Louis or Mr Archer.

24. Ms Wojciechowski interviewed George. George told her that his initial report of being grabbed and dragged by Mr Archer was true and that he had to make up a story to fix it because he got into so much trouble.

25. Ms Wojciechowski interviewed Louis. Louis became distracted and unable to refocus when asked about the incident and Ms Wojciechowski was unable to obtain an account from him.

26. Ms Wojciechowski interviewed two witnesses to whom George had reported that the bruise on his arm was caused by Mr Archer grabbing, dragging and throwing him and one witness to whom Louis had reported that the bruise on his leg was caused by Mr Archer kicking him.

27. Ms Wojciechowski interviewed Mrs Archer, who denied any knowledge of Mr Archer grabbing George and said that she recalled Louis biting George on the arm. She acknowledged that Mr Archer did raise his voice at the children. Ms Wojciechowski interviewed Mr Archer. He denied grabbing George by the arm or kicking Louis. He blamed Louis for the bruising to George’s arm and suggested that Louis had received the bruise to his leg at school.

28. Ms Wojciechowski also interviewed Dr Lindsay (George’s psychologist), Ms Franklin (Louis’ behaviour therapist) and Michael King (Anglican Care Placement Support Worker). They each expressed adverse opinions about the parenting by Mr and Mrs Archer of George and Louis.

29. In October 2020 a care concern (concern 14) was raised by the Department about Mr and Mrs Archer breaching the safety plan by Mr Archer having unapproved contact with the children. The care concern was categorised by the Department as minor.

30. On 30 November 2020 Ms Wojciechowski completed a report in relation to the September 2020 care concerns, which was countersigned by her Acting Team Leader. The report made conclusions which indicated that the concerns were substantiated, Mr Archer physically and emotionally abused the children, Mrs Archer emotionally abused the children and there were deficits in their care. The report also concluded that the concern the subject of the October care concern was substantiated because Louis had reported that he had gone on the ride-on mower with Mr Archer and Mr Archer had made him breakfast and dinner the night before.

31. On 10 December 2020 a Complex Case Review Meeting was convened. It was chaired by the Department’s Lead Psychiatric Director Dr Prue McEvoy. It was attended by Ms Shaw, Mary-Ann Pittard (Ms Shaw’s Supervisor), Shalini McCarthy (Ms Shaw’s Manager), Gayle Bartlett (a Principal Social Worker at the Department) and Janine Pratt (Supervisor Placement Services Unit), together with Dr Lindsay, Mr King and a social worker from the Department of Education.

32. Ms Shaw made handwritten notes but no minutes of the meeting were tendered other than a page showing the attendees and acknowledgement of country. In addition, on 8 January 2021 Dr McEvoy and the Department’s Lead Clinician for Complex Case Review, Joel O’Rielly, sent a letter to Ms Shaw summarising the result of the meeting.

33. Ms Shaw stated in the January 2021 Memorandum (referred to below) that there was agreement at the Meeting that George and Louis were unsafe in the care of the Archers and that it was in their best interests to terminate the placement although this is not recorded as such in Ms Shaw’s handwritten notes or the letter from Dr McEvoy and Mr O’Reilly. The Meeting occurred before the investigation into the September 2020 care concerns was completed.

34. The only discussion at the Meeting about where George and Louis would be placed if removed from the care of the Archers recorded in Ms Shaw’s handwritten notes was a statement by Dr McEvoy that in her opinion they should be placed separately so that they could establish a sibling relationship that is more normal, each child needing time first to be nurtured and to develop; and a statement by Ms Pratt that foster care was unlikely due to both children being CAT4 and that there was low carer availability in the local area to support a placement. It is an agreed fact on appeal that “CAT4” means “Level 4: Extreme Problems” using the complexity assessment tool to measure the behavioural and special needs of a child. It is not recorded in Ms Shaw’s notes whether the other participants at the meeting agreed with the views expressed by Dr McEvoy or Ms Pratt.

35. On 22 December 2020 the Department’s Care Concern Outcome Panel concluded that Mr Archer had physically abused George and Louis; Mr and Mrs Archer were causing the children emotional harm by exposing them to domestic violence and yelling, swearing and aggressive behaviour; and Mrs Archer breached the safety plan by allowing Mr Archer to have contact with the children. On 14 January 2021 a memorandum was sent to the Department’s Director, Quality and Practice Directorate requesting review and approval of the care concern outcome assessed by the Panel, which she approved on 15 January 2021.

36. On 5 January 2021 Ms Shaw sent an email to Lynn Taylor, Acting Principal Social Worker at the Department and Srdjan Vajdic, Manager of the Department’s Quality and Practice Directorate – Psychological Services, in preparation for a meeting to discuss the question of removal of the children. The email included a statement that consideration was required in relation to the children’s future placement needs, including whether it was in their best interests to be placed together or separately.

37. On 6 January 2021 Ms Shaw, Ms Pittard and Ms Shaw’s Acting Manager Kate Fluin met with Ms Taylor. Ms Shaw prepared a Case Note to record the discussion at the meeting. It was agreed that the Department needed to acknowledge that the children had special needs and complexities, being “CAT4 and SNL 150%”. It is an agreed fact on appeal that “SNL 150%” means a loading of 150 per cent of the relevant carer payment rate on account of a child having special needs.

38. In relation to where and when George and Louis would be placed, Ms Shaw recorded the following (which appears to have been the opinion expressed by Ms Taylor but is expressed in ambiguous terms as to whose opinion or opinions it was):

    There are no family based placements available for the children; the boys would be placed in Immediate Care. This has to be a consideration regarding the children's psychological wellbeing. These are children who require specialised care. PSU and [the relevant] manager (Shalini McCarthy) made the assessment that family based placements in this region would not be a good option due to the carers reputation and behaviour. Mary-Ann explained that when the children were placed in Commercial Care for 3-4 weeks during the investigation into the 2018 care concerns, [Mrs Archer] worked hard to find them and once she did, she sat with them. The [relevant] Office are concerned that [Mrs Archer] would use her carer support network to find the children once they are no longer in her care. Mary-Ann discussed alternative placements for the children; this includes that [they] will go into [name]’s placement ([name] is leaving this placement). The main carer is reliable and stable.

39. It is an agreed fact on appeal that Immediate Care describes a rotational care placement with agency staff.

40. On 7 January 2021 Ms Shaw and Ms Pittard met with Mr Vajdic and Ms Taylor. Ms Shaw prepared a Case Note to record the discussion at the meeting but the version tendered only contains introductory statements and not a record of the discussion. In the January 2021 Memorandum (referred to below) Ms Shaw stated that Ms Taylor and Mr Vajdic expressed the opinion that it was in the best interests of the children to formally terminate their placement with the Archers.

41. As referred to above, on 8 January 2021 Dr McEvoy and Mr O’Rielly sent a letter to Ms Shaw reporting on the 10 December 2020 Complex Case Review Meeting. The letter included the following passage:

    Regardless based on the information discussed today we do not recommend this placement continue and case management and PSU should begin assertively scoping alternate placements. We anticipate the serious care concern investigation report will make a similar recommendation. We will make contact with the care concern management unit to get an estimated time of completion for that report. It is recommended that alternate placements in the … region are scoped as school appears to be a protective factor for these boys, and [Louis] has been offered a special options placement at [primary school] for 2021. It is also recommended that separating these siblings is considered given the highly parentified relationship described in today's meeting.

42. On 14 January 2021 Dr Lindsay prepared a report at the request of Ms Shaw addressing concerns about the care provided by the Archers and the impact of this on the children, whether the placement was meeting the children’s needs and whether they should remain in the placement. Dr Lindsay concluded that there were a number of concerns around parental management of George and Louis, the Archers lacked the level of parent insight and management to fully meet the children’s emotional and safety needs, previous remedial plans had resulted in improvements but they had not been sustained and leaving the children in the care of the Archers would continue to impact their developmental progress. Dr Lindsay recognised that removal of the children from the Archers would be very traumatic, particularly for George, whose mental health was already fragile. Dr Lindsay did not in the letter refer to potential alternative placements, compare them with the placement with the Archers or recommend removal.

43. On 19 January 2021 Ms Shaw sent a memorandum to the relevant Director of the Department, Akash Segal, who was a delegate of the Minister for the purpose of exercising powers under section 84 of the Act (the January 2021 Memorandum). The Memorandum set out the history and concluded with a recommendation, supported by Ms Shaw’s Manager, seeking approval to remove George and Louis from the care of the Archers pursuant to section 84(1)(c) of the Act. The Memorandum contained eight appendices. It also contained three attachments: Ms Humphreys’ December 2016 report, Dr Lindsay’s January 2021 report and the first page of minutes of the December 2020 Complex Case Review Meeting coupled with Dr McEvoy’s 8 January letter.

1. The Memorandum focused on assessed or perceived deficits in the care by the Archers, the incident reports and assessed or perceived disadvantages in George and Louis remaining in the care of the Archers. As the Tribunal observed in its reasons, there was no consideration in the Memorandum or appendices of alternative future placements if George and Louis were removed and very little consideration of the potential disadvantages of removal or alternative placements. Such consideration was confined to the following passages:

   The Department acknowledges the strong connection and attachment that the carers have with [George] and [Louis], and for the most part, the children reciprocate this, Dr Careen Lindsay holds the view that there is an element of fear in the relationship between [George] and [Mr Archer]. Despite these connections, the Department holds the view that it is in the children's best interests to not reside with the carers, and that an appropriate family contact arrangement will be developed that meets the children's needs.

   …

   AC Care, Dr Lindsay and Ms Franklin are worried about the impact on the children of the removal process; however, they agree that it is the children's best interests to terminate the placement with [Mr and Mrs Archer].

2. On 20 January 2021 Ms Franklin provided a report in relation to Louis. She said that initially Mr Archer accompanied Louis to sessions. She had not met Mrs Archer but had had numerous dealings with her by telephone and text message. She expressed an unfavourable opinion concerning the attitude of, and care provided of Louis by, Mr and Mrs Archer. She expressed the opinion that Mr and Mrs Archer did not appear to have the parenting capacity to support Louis’s needs. She expressed the opinion that they were not willing or able to learn the parenting skills required to meet Louis’ needs. She expressed the opinion that the current placement was not able to be a place where Louis could thrive. Ms Franklin did not in the letter refer to potential alternative placements, compare them with the placement with the Archers or recommend removal.

3. On 20 January 2021 Mr Segal, as the Chief Executive’s delegate, approved the removal recommended in the January 2021 memorandum.

4. On 27 January 2021 the Archers were informed of the decision by the Minister’s delegate and George and Louis were removed from their care. They said that they would seek an internal review of the removal decision.

5. No documents were tendered showing what investigations, if any, were made by the Department in relation to potential placement of George and Louis with alternative carers pursuant to the recommendation by Dr McEvoy and Mr O’Reilly on 8 January 2021 to scope alternative placements for the children or what consideration was given to separating George and Louis as suggested in that letter. Ms Shaw did not give evidence concerning these topics.

6. George and Louis were placed in a residential facility. The facility comprises a three bedroom house. There are two employees of HenderCare present on a rotational shift basis when George and Louis are at home and awake seven days a week. There is one employee of HenderCare present on a rotational shift basis when George and Louis are sleeping and who sleeps in the third bedroom. There are six employees in total working on a rotational shift basis at any one time. At the time that Ms Shaw gave evidence, two of the employees initially working at the facility had been replaced by two other employees.

7. Ms Shaw gave evidence that attempts to place George and Louis with a family were deferred pending review of the removal decision because it would not be fair on the children to start trying to place them with another family until the review process had been concluded.

8. On 29 January 2021 Dr DeSilva (the children’s paediatrician) was informed of the removal decision. Ms Shaw recorded that he said that he supported the decision.

9. On 23 February 2021 the Archers lodged an application for internal review by the Minister of the removal decision pursuant to section 157 of the Act.

10. On 13 April 2021 the Department prepared a Case Plan for each of George and Louis. Amongst other things, each case plan included submitting a referral for a family-based placement after the review process had been completed and said that the children would be placed together in a family-based placement.

11. On 27 April 2021 the Minister’s delegate confirmed the removal decision.

12. Ms Shaw gave evidence before the Tribunal that, after the removal, the Archers had supervised face-to-face contact with George and Louis once a month. During the visits in February and March 2021 Ms Shaw observed that the Archers were not child focused or emotionally responsive and did not respond appropriately to the children’s cues. Following those visits, a significant deterioration was observed in the children’s emotional well-being and behaviour, with increased incidence of emotional dysregulation and violent outbursts.

13. Ms Shaw gave evidence that the Department met with the Archers in April 2021 to provide support, guidance and strategies to improve the quality of the family contact. At the face-to-face meetings in April, May, beginning of July and end of July 2021, Ms Shaw observed an improvement in Archers’ interactions with the children, resulting in a noticeable improvement in the children’s emotional well-being during and following the family contact. However, during a visit in July 2021 Mrs Archer was unable to filter her responses when C asked about his bedroom and it was subsequently reported that, following this contact, the behaviours of George and Louis were exceptionally heightened.

14. Ms Shaw gave evidence that between February and April 2021 there were varying degrees of violence displayed by George and Louis every day, including swearing, yelling, punching, hitting, kicking and spitting, and they also displayed sexualised behaviour towards each other. However, since May 2021 there were no major violent incidents between the children, the swearing and yelling decreased and tended to occur only out of frustration with each other and the sexualised behaviour ceased.

15. Ms Shaw gave evidence that George and Louis had two supervised face-to-face visits from their biological mother, the first in April 2021 and the second in July 2021.

16. On 18 May 2021 the Archers lodged at the Tribunal an application for review of the January 2021 removal decision.

17. On 15 July 2021 Dr Lindsay provided a report addressed to Ms Shaw. She said that she had agreed to the removal of George and Louis from their foster placement. She expressed concern about George’s mental well-being if he were interviewed by the Tribunal. She said that he had started to settle in care and had reported that things were going well in his care home. She expressed the opinion that he would not have enough insight into the reasons why he was removed from his foster parents and the interview process would have a negative impact on his current progress and impact his overall mental well-being.

18. On 28 July 2021 Ms Franklin provided a report. She expressed the opinion that discussion with Louis about a placement change or any events leading to or following proceedings would confuse and distress Louis and have a negative impact on his emotional well-being.

19. Between January and July 2021 over 80 care concerns were raised while George and Louis were in the residential facility. They were tendered after the end of the Tribunal hearing.

20. On 2 August 2021 the Archers lodged at the Tribunal an affidavit sworn by Mrs Archer on 2 August 2021 and an affidavit sworn by Mr Archer on 2 August 2021.

21. On 12 August 2021 the Chief Executive lodged at the Tribunal an affidavit affirmed by Ms Shaw on 12 August 2021.

22. On 13 August 2021 each of the parties lodged with the Tribunal an outline of submissions.

23. On 17 and 18 August 2021 the Tribunal, constituted of a Senior Member, being a legal practitioner, and a Member, being a social worker, heard evidence and submissions by the parties. The Tribunal decided that a further report should be obtained from Dr Lindsay. The Tribunal identified the subjects it expected the report to cover, but left it to the parties to agree on the questions to be put to Dr Lindsay. The Tribunal, on the application of the Archers, requested production by the Department of incident reports created after the removal.

24. On 20 August 2021 the Crown Solicitor’s Office, acting for the Chief Executive in the Tribunal proceeding, sent a letter to Dr Lindsay requesting a report. The letter was prepared jointly by the Crown Solicitor’s Office and the solicitor for the Archers. The letter stated that the Tribunal had indicated that it would be assisted by a report as to George’s well-being in his current placement and the impact on George (and Louis) of being removed from the care of the Archers. It set out three matters that Dr Lindsay should address and discuss in her report, which are reproduced below.

25. On 1 September 2021 the Chief Executive provided to the Tribunal and the Archers copies of incident reports created between February and August 2021.

26. On 3 September 2021 Dr Lindsay provided a report. The content of that report is summarised or set out below.

27. The Tribunal determined that the Member (being the social worker) should meet with George but not with Louis.

28. On 6 September 2021 the Member met with George in the presence of Dr Lindsay. The Member subsequently prepared a record of the meeting.

29. On 15 September 2021 the biological mother of George and Louis swore an affidavit expressing support for the Archers continuing to have the care of George and Louis and describing her observations of George and Louis on the two occasions after their removal when she saw them.

30. On 22 September 2021 the Archers lodged with the Tribunal supplementary written submissions. They addressed the incident reports, Dr Lindsay’s 3 September 2021 report and the biological mother’s 15 September 2021 affidavit. In addition, they contained a request for an urgent interim order pursuant to subsection 37(1) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act) that Louis be returned immediately to the care of the Archers.

31. On 23 September 2021 the Tribunal convened a hearing before the Senior Member to hear the application by the Archers for an urgent interim order for the return of Louis to their care.

32. On 24 September 2021 the Tribunal made an order dismissing the application for an urgent interim order.

33. On 29 September 2021 the Chief Executive lodged with the Tribunal supplementary written submissions in response to the supplementary submissions of the Archers.

34. On 9 November 2021 the Tribunal delivered a statement of reasons and made an order that the removal decision of the Chief Executive’s delegate was affirmed.

35. On 8 December 2021 the Archers filed a notice of appeal against the Tribunal’s decision.

    The Tribunal hearing

36. The Archers tendered their affidavits sworn on 2 August 2021. They each gave short supplementary oral evidence in chief and were cross-examined[3]. Mr Archer denied the allegations the subject of the September 2020 care concerns and they both denied generally hitting or physical violence towards George or Louis (other than Mr Archer smacking Louis on the bottom on one occasion).

    [3]    It transpired, although not known at the time, that there was a fault in the audio recording while Mrs Archer gave evidence and hence no transcript is available of her oral evidence.

37. The Archers tendered the affidavit of the biological mother of George and Louis sworn on 15 September 2021. They also tendered photographs taken by Mrs Archer of George’s arm on 15 September 2020 and 29 December 2020.

38. The Chief Executive tendered Ms Shaw’s affidavit affirmed on 12 August 2021. She gave short supplementary oral evidence in chief and was cross-examined at length.

39. The Chief Executive tendered three spiral-bound volumes of Department documents prepared pursuant to section 35 of the SACAT Act; two bundles of incident reports created between February and August 2021; and Dr Lindsay’s 3 September 2021 report.

    The Tribunal’s reasons

40. The Tribunal set out the history, and the characteristics and conduct of the two children, in substantial detail.

41. The Tribunal summarised the May-June 2018 care concerns (concerns 7 to 9) and the September 2020 care concerns (concerns 12 and 13), which it noted were “substantiated” by the Department. On the one hand, the Tribunal did not see its role as making its own findings on the balance of probabilities whether the alleged conduct of Mr or Mrs Archer the subject of each care concern occurred and its focus and ultimately reliance was on deficits in the care given by the Archers rather than on specific incidents. On the other hand, the Tribunal said that it specifically accepted the outcome of the 2020 serious concern investigation and said that it was satisfied that there were also a considerable number of substantiated care concerns.

42. In relation to the care concerns, the Tribunal said:

    76.Despite the submissions of the applicant’s 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.

    …

    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 Archers extend beyond those individual care concerns and the outcome of those investigations.

    …

    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.

    …

    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 Mr and Mrs Archer. We are satisfied that there were also a considerable number of substantiated care concerns.

43. Under the heading “No statement of reasons”, the Tribunal was critical that it was not provided by the Department with a statement of reasons by the decision maker Mr Segal as required by section 35 of the SACAT Act. The January 2021 Memorandum was not, as the Chief Executive submitted, an adequate statement of reasons because Ms Shaw’s memorandum was merely endorsed as “approved” by Mr Segal with no comment or assessment and in any event it did not balance the competing considerations.

44. The Tribunal said:

    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:

    ·discussing future potential harm as a result of the decision to remove the children from the placement contrasted with the past and ongoing harm of maintaining the placement

    ·recognising and discussing the children’s need for love and attachment

    ·considering their need for self-esteem, to achieve their full potential and to have their views considered

    ·balancing the competing requirements expressed in the important placement principles which includes an analysis of whether the current and/or future placement is safe, secure, stable and nurturing and why the preferential option of keeping the children in an existing relationship is not favoured.

45. Under the heading “A lack of consideration of the different types of harm and a failure to balance competing considerations”, the Tribunal said that the January 2021 Memorandum did not acknowledge or identify the disadvantages of removal of the children from the care of the Archers or weigh the disadvantages of the children remaining in their care against the disadvantages if they were removed. The Tribunal was not persuaded that the decision-maker properly balanced all of the competing considerations. As a result, it was necessary for the Tribunal to evaluate the evidence and make its own assessment of the balancing of considerations.

1. The Tribunal said:

   141.The CYPS Act requires decision-makers to undertake the difficult task of considering and weighing up different types of harm (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 … 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 [George and Louis] 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.” 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…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.[4]

   [4]     Emphasis in original.

2. Under the heading “What does the evidence reveal”, the Tribunal made the following findings concerning harm experienced by George and Louis with the Archers:

   150We find, for all of 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.

   151We 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.

3. The Tribunal addressed the question of evidence about the potential harm that may be caused to the children by their removal from the care of the Archers:

   152Regrettably, 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.

   153The 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 [George].

   154In 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.

   155We 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.

   156As 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 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).

   157In 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.”

   158The 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, 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.

   160As 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. 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.

   161In a report written only 5 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 Mr [Archer] and Mrs [Archer] and I am certainly concerned that the removal of the children from Mr [Archer] and Mrs [Archer] will be very traumatic for both children, and particularly for [George], whose mental health is already very fragile. In my opinion leaving the children in Mr [Archer] and Mrs [Archer]’s care will continue to impact their developmental progress; however, the removal of the children from Mr [Archer] and Mrs [Archer] will be very traumatic, particularly for [George], who may never fully recover from this traumatic impact on his mental health.”

   162We note that at meetings leading up to their removal Dr Lindsay ultimately supported the decision to remove the children (in particular [George]) from the care of the [Archer]s. She was quoted as agreeing with the proposal in the January recommendation.

   163We 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.

4. The Tribunal summarised the evidence about the post-removal behaviours of George and Louis. In relation to Dr Lindsay’s 3 September 2021 report, the Tribunal said:

   168We sought an updated report from Dr Lindsay because of the concerns she had expressed in January about the potential impact on [George]’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 [George]’s progress in adjusting to his new placement’.

   Dr Lindsay goes on to observe that [George]’s level of anxiety appears to be lower than in the 6 months prior to removal and that she would describe [George] 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.

   169We infer 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.

5. In relation to the incident reports, the Tribunal said:

   167We accept the submission of the Department that we should bear in mind that the rotational care staff were duty-bound to make those reports (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.

   …

   170The 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 [George] an [Louis] since their removal from the care of the applicants”.

   171We 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.

   172However, we agree with the respondent’s submission that we should not infer that either [George]’s or [Louis]’s current challenging behaviours are solely, or even in large part, attributable to the placement decision under review. The documented behaviours are not new, although they may have been elevated for a period after removal, which is to be expected.

   173In particular, [George]’s soiling and behavioural issues, his aggression and his fighting with his brother were well documented prior to removal.

   174[Louis] 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.

   175We accept that [Louis] has a significant trauma history which continues to impact his daily functioning and that aggressive responses have been normalised for [Louis]. 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.

6. Under the heading “Evaluation of risks/harm and competing considerations”, the Tribunal said:

   176Unlike 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.

   177We 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 Mr [Archer] and Ms [Archer]. We are satisfied that there were also a considerable number of substantiated care concerns.

   178We 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.

   179The 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.

   180We have taken all of these considerations into account.

   181However, the paramount consideration in the Act is protecting children from harm.

   182We 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.

   183When 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.

   184We 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.

   185We 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.

   186This 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 [George] and [Archer] from a placement with Mr [Archer] and Ms [Archer] is the correct decision and that there is no preferable decision other than that which was made on 20 January 2021.

   187We affirm the decision on review.

   The statutory regime

7. The Act was enacted in 2017 following the report of the Child Protection Systems Royal Commission and commenced on 1 July 2019. The Act was enacted to replace the Children’s Protection Act 1993 (SA) (the Former Act).

   Guardianship, custody and care

8. The Act uses the terms guardianship, custody and care. None of these terms is effectively defined by the Act. Each term has been used historically in the general law and in legislation addressing powers and responsibilities in respect of children, but historically each term has had different meanings depending on the context, including whether the term was used in conjunction with one of the other terms.

1. Turning to the evident purpose of section 84(3)(b), its evident purpose is obscure. It cannot be said that an evident purpose can be discerned which supports the construction advanced by the Archers. Nor can an evident purpose be discerned which particularly supports the construction advanced by the Chief Executive.

2. The Chief Executive refers to the provisions in Chapter 7 Part 3 of the Act which provide for transition in certain cases from care of an approved carer to guardianship and to the provision in subsection 50(4) requiring the Chief Executive before applying for an order under section 53 to assess the likelihood of reunification of the child with those from whom the child has been removed. The Chief Executive submits that an evident purpose of section 84(3)(b) is to require the Chief Executive, all other things being equal, to give preference to a placement that may facilitate transition to guardianship. Similarly, the Chief Executive submits that an evident purpose is to require the Chief Executive, all other things being equal, to give preference to a placement that may facilitate reunification. The Chief Executive submits that, although this only involves an indirect application of giving preference under section 84(3)(b), it represents the evident purpose of the provision.

3. The operation of the provision in the way contended by the Chief Executive is not only indirect but it is relatively remote and obscure. It appears unlikely that it was the purpose of including the provision. However, I accept that, in the circumstances posited by the Chief Executive, the provision would have that operation.

4. In conclusion, the Act provides for guardianship, custody and care in respect of a child in a hierarchical structure.

5. If a person other than the Chief Executive is appointed by the Youth Court as the guardian of a child, the person has all of the powers and responsibilities that parents ordinarily have in respect of a child. If the Chief Executive is appointed by the Youth Court as the guardian of a child and places the child in the care of a carer under section 84(1)(a) or (b), the carer has the immediate powers and responsibilities in respect of the child but this is subject to a power of direction by the Chief Executive and the Chief Executive has the higher level powers and responsibilities in respect of the child, including such matters as education choices, religion choices and other larger matters.

6. If the Chief Executive is granted custody of a child by the Youth Court and guardianship continues to vest in the child’s parents or another person or persons, the guardian or guardians retain the macro level powers and responsibilities in respect of the child but the Chief Executive otherwise has the powers and responsibilities in respect of the child.

7. If the Chief Executive is granted custody of a child by the Youth Court and places the child in the care of a carer under section 84(1)(a) or (b), the carer has the immediate powers and responsibilities in respect of the child but this is subject to a power of direction by the Chief Executive and the Chief Executive has (subject only to the powers and responsibilities of the child’s guardian or guardians if any) the higher level powers and responsibilities in respect of the child.

8. On its proper construction, the reference in section 84(1) to custody is a reference to what is often described as legal custody rather than what is often described as actual or physical custody.

   Consideration required in the circumstances

9. The Archers contend in the alternative that it was necessary in the circumstances for the Tribunal to consider the prospects and timing of George and Louis being placed in the care of alternative carers before reaching its final conclusion and that the Tribunal failed to do so.

   Was consideration required?

10. As the Tribunal itself recognised in its reasons for decision, decisions made under the Act, including a decision whether to remove a child from care under section 84(1)(c), necessarily involve a balancing exercise. In the case of a removal decision, it is necessary to balance the advantages of removal (or disadvantages of leaving a child in the existing care) against the disadvantages of removal (or advantages of leaving a child in the existing care).

11. In making the decision, the Chief Executive in the first instance (and the Tribunal on review) is obliged to have regard to:

    ·the promotion of the outcomes referred to in subsection 4(2);

    ·the paramount consideration of ensuring protection from harm referred to in section 7;

    ·the needs referred to in section 8;

    ·the principles of intervention referred to in section 10; and

    ·the placement principles referred to in section 11.

12. Ordinarily, except in extreme cases, before making a decision on removal, it will be necessary to identify where, when and how the child would be placed if removed. This is a necessary part of identifying the alternative to leaving the child in the care of the current carer. This will involve an assessment of a combination of the desirability of alternative types of placement combined with an assessment of the availability of each alternative type of placement and the timing of making such a placement.

13. For example, if no prospective alternative placement could be located at all, this would be a strong factor tending against removal and in favour of leaving a child in the care of the current carer.

14. The factors to which the Act requires the Chief Executive to have regard suggest that, in a choice between alternative types of placement and all other factors being equal, the highest preference would be to place the child in the care of a family member or person with whom the child is familiar; followed by placing the child in the care of another person or persons; followed by placing the child in a residential facility.

15. In relation to placement in the care of a family member or person with whom the child is familiar compared to placement in the care of a stranger, subsection 8(3) provides that it is desirable that the connection of children with their biological family be maintained and the placement principle in section 11(1)(b) provides that the preferred option is to place the child with a person with whom they have an existing relationship.

16. In relation to placement in the care of a carer compared to placement in a residential facility, the placement principle in section 11(1)(a) provides that all children who have been removed from the care of a person under the Act should be placed in a safe, nurturing, stable and secure environment; and section 8(1)(b) provides that the need for love and attachment is to be considered in the administration and operation of the Act.

17. It is important to emphasise that the expression of preferences in this manner does not entail that a child should always be placed in the care of a family member or person with whom they are familiar rather than in the care of a stranger; nor that a child should always be placed in the care of a carer rather than in a residential facility. All relevant factors must be considered and weighed together. In a given case, it may be preferable that a child be placed in the care of a stranger rather than a family member or person with whom they are familiar. In a given case, it may be preferable that a child be placed in a residential facility rather than in the care of a carer. Nevertheless, it is necessary to take into account the general order of priorities (other factors being equal) referred to above.

18. The Department considered that it was preferable that George and Louis be placed in the care of carers rather than remaining in a residential facility. The Case Plans for George and Louis prepared in April 2021 included submitting a referral for a family-based placement after the review process had been completed. Ms Shaw gave evidence, which is reproduced below, that the Department wanted a family for the boys; believed that they required a specialised foster care placement; and was looking at trying to get them into a permanent long-term family-based placement.

19. The Tribunal also regarded it as preferable that George and Louis be placed in the care of carers rather than remaining in a residential facility. The Tribunal said, amongst other things:

    We accept that the current placement is … not stable (in the sense of being ongoing) and is arguably lacking a nurturing primary care giver...

    … the current placement does not provide any pre-existing care relationship and is staffed by professional agency staff.

    …

    …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.

    …

    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.

20. The Tribunal emphasised the balancing exercise that needed to be undertaken by the Department in weighing the advantages and disadvantages of removal of George and Louis and was critical of the Department for not documenting an assessment of those advantages and disadvantages. The Tribunal said, amongst other things:

    133.... 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.

    134There 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…

    135The 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.

    136In order to demonstrate that the correct decision has been made the decision-make needs to address the relevant principles in the Act and reveal a process of reasoning weighing up all of the competing considerations.

    137In our view, clear and comprehensive decision-making should demonstrate that the Department for Child Protection has undertaken that reasoning process including, if necessary, buy setting out all of the positive and negative implications of any decision for children in its care.

    …

    142In 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…

    …

    146… There was no discussion in the [memorandum] 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…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”.

21. Consideration was required to be given by the Tribunal to the prospects and timing of George and Louis being placed in the care of alternative carers and to the differential between such a placement and placement in a residential facility.

    Evidence of consideration by the Chief Executive

22. Before addressing the question whether consideration was given by the Tribunal to the prospects and timing of George and Louis being placed in the care of alternative carers and to the differential between a placement in care and placement in a residential facility, it is necessary first to identify the evidence before the Tribunal as to consideration by the Department of these matters  (and to the objective evidence before the Tribunal as to these matters which I address in the next section).

23. The material before Mr Segal comprised the January 2021 Memorandum including its eight appendices and three annexures. It did not on its face or on the evidence comprise the Department file included in the section 35 documents.

24. As observed by the Tribunal in the paragraph 134 of its reasons reproduced at [121] above, the January 2021 Memorandum did not address where George and Louis would be moved to and whether the proposed placement would meet their section 8 needs.

25. Ms Shaw’s handwritten notes of the 10 December 2020 Complex Case Review Meeting record only two items of discussion about where George and Louis would be placed if removed from the care of the Archers:

    1a statement by Dr McEvoy that in her opinion the children should be placed separately so that they could establish a more normal sibling relationship, each child needing time first to be nurtured and to develop, with no record of views expressed by the other participants on this topic; and

    2a statement by Ms Pratt that foster care was unlikely due to both children being CAT4 and there was low carer availability in the local area to support a placement, with no record of views expressed by the other participants on this topic.

26. Ms Shaw’s handwritten notes were not before the Chief Executive’s delegate Mr Segal.

27. Dr McEvoy’s letter dated 8 January 2021 referring to the meeting was before Mr Segal as part of Annexure 2 to the January 2021 Memorandum. That letter recommended that:

    1consideration be given to separating George and Louis given the highly parentified relationship described in the meeting; and

    2alternate placements in the region be scoped (without referring to the nature of alternative placements (care v residential facility) or the prospect or timing of placement in care).

28. The Department’s record of the 6 January 2021 meeting with Ms Taylor (attended by Ms Shaw, Ms Pittard and Ms Fluin) states:

    There are no family based placements available for the children; the boys would be placed in Immediate Care. This has to be a consideration regarding the children's psychological wellbeing. These are children who require specialised care. PSU and [Ms Shaw’s] manager (Shalini McCarthy) made the assessment that family based placements in this region would not be a good option due to the carers reputation and behaviour. Mary-Ann explained that when the children were placed in Commercial Care for 3-4 weeks during the investigation into the 2018 care concerns, [Mrs Archer] worked hard to find them and once she did, she sat with them. The [relevant] Office are concerned that [Mrs Archer] would use her carer support network to find the children once they are no longer in her care. Mary-Ann discussed alternative placements for the children; this includes that [they] will go into [name]’s placement ([name] is leaving this placement). The main carer is reliable and stable.

29. The record of the meeting with Ms Taylor was not before the Chief Executive’s delegate Mr Segal.

30. Accordingly, the January 2021 Memorandum including its appendices and annexures contained no discussion about prospective alternative placements of George and Louis if removed from the care of the Archers nor any assessment of the degree to which alternative placements would meet the children’s needs apart from the recommendation by Dr McEvoy and Mr O’Rielly in the 8 January 2021 letter that consideration be given to placing the children in separate placements and that alternative placements in the region be scoped.

31. There was no reference in the January 2021 Memorandum to any steps taken pursuant to Dr McEvoy’s and Mr O’Reilly’s recommendations; identification or assessment of the prospects, timing and characteristics of locating potential alternative carers or potential residential facilities; or comparison between the care provided and likely in future to be provided by the Archers with the care that the children were likely to receive in alternative placements.

32. It is theoretically possible that Mr Segal in making the decision had knowledge of information on which a proper assessment of the prospects and timing of a placement of the children with alternative carers could have been made. However, no such information was disclosed by the Department in the section 35 documents and the Chief Executive informed the Tribunal that the reasons for decision were comprised entirely in the January 2021 Memorandum.

33. As the Tribunal itself observed at the paragraphs of its reasons for decision reproduced at [360] above, the failure to consider these matters comprised a glaring deficit in the decision-making by the Chief Executive’s delegate and rendered it necessary for the Tribunal to make its own assessment of these matters.

    Evidence before the Tribunal

34. The evidence before the Tribunal in relation to potential placements in the alternative to George and Louis remaining in the care of the Archers comprised Ms Shaw’s handwritten notes of the 10 December 2020 meeting, Ms Shaw’s record of the 6 January 2021 meeting with Ms Taylor and the letter from Dr McEvoy and Mr O’Rielly dated 8 January 2021 referred to in the previous section, together with two additional items of evidence.

35. The first additional item of evidence was the Case Plans for George and Louis prepared by the Department in April 2021 after the removal decision. Each Case Plan included submitting a referral for a family-based placement after the review process had been completed. However, they contained no assessment of the prospects or timing of an acceptable family-based placement being found.

36. The second additional item of evidence was a passage during the cross-examination of Ms Shaw about the intentions of the Department after removal. However, Ms Shaw gave no evidence about the prospective position immediately before the removal decision was made in January 2021.

37. Ms Shaw’s evidence in this respect was contained in the following passage:

    AWe are looking at trying to get them into a permanent therapeutically supportive, emotionally supportive long-term family-based placement.

    …

    AEvery carer household is different and the set up of the household is different. It might not necessarily be a mum and a dad. But it needs to be – we want a family for the boys.

    …

    ASo we are, we believe that the children require a specialised foster care placement where the carers have a high-level of skill; parentings skills than Mr and Mrs [Archer]. Because of the challenging behaviours, because of the complex trauma that the children have experienced, because of their disabilities, they need a high-level of care and that would be a specialised care placement.

    SENIOR MEMBER: How easy are they to locate Ms Shaw?

    AThere’s, with specialised placements, there’s more matching that is undertaken to ensure that it’s the right placement for the child. We have a number of children in specialised family-based placement in South Australia. It does take a little bit longer to find or source the right placement for; specialised placement for the children and that’s due to that matching that needs to take place. Any placement at the moment is difficult because there’s a lack of carers in South Australia, but we want to ensure that the children’s placement is meeting their needs.

    SENIOR MEMBER: So, there’s a lack of foster carers and then I assume a shortage of specialised foster care placements, just because of this – you know, the level of specialty required to look after [George and Louis] would be quite high, I assume. Would that be the case?

    A[George and Louis] do need a high level of care, absolutely.

    SENIOR MEMBER: So, if that can’t be sourced, would they stay where they are?

    AWe don’t want to put the children in a position where they’re gonna continuously change placements. They are – I mean, yes, there’s still some issues that we are working on with the boys but as a whole, they’re doing quite well in their placement.

    QHave you taken steps yet to investigate these specialised, a specialised family placement?

    ASo we are aware that this process, the SACAT process has the potential to impact their future placement needs. So, it would not be fair on the children to start trying to actively place them with another family until this process has been concluded.

    QSo, is the answer to my question as to whether you’ve taken any steps yet to source a specialised family placement, is the answer to my question, no?

    AThere is a referral that is sitting with Placement Services Unit and they are the ones that explore and identify placements. That is not done by the local office.

    QRight. Is that referral to which you refer, does that referral seek only potential placements where the boys can be placed together? Or does it contain an option for them to be placed apart?

    …

    AAs I was saying, the preferred option is to keep the children together and that is definitely included in the referral. But it is in the referral that if we cannot keep the children together, then we need to look at separate placements for the children. But as I said, we’re actively trying to source – or after this process, we’re actively trying to source a placement for the children to remain together because that’s what’s in their best interest.

    Was consideration given?

1. I turn to the question whether the Tribunal gave consideration to the differential between a placement with carers and a placement in a residential facility and to the prospects and timing of George and Louis being placed in the care of alternative carers.

2. The Tribunal said:

   184… 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.

   185We 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.

3. It is difficult to know what to make of these passages. Read in isolation, paragraph 185 might be read as meaning that the Tribunal assessed that it was more likely than not that a specialised family placement or two separate specialised family placements would be found for George and Louis in a timely manner. However, the Tribunal simply did not have before it evidence on which it could have made such a finding.

4. Although Dr McEvoy and Mr O’Rielly had recommended alternative placements in the region be scoped, no evidence was adduced that any such scoping had in fact occurred before the removal decision (the evidence of Ms Shaw suggested, if anything, that it had not occurred at all). Although the record of the 6 January 2021 meeting with Ms Taylor stated that alternative placements were discussed, it did not identify what placements were discussed or their adequacy (other than the specific placement mentioned) and no evidence was adduced of any further steps being taken to investigate alternative placements (again the evidence of Ms Shaw suggested, if anything, that no steps had been taken).

5. Although the April 2021 Case Plans included submitting a referral for a family-based placement after the review process had been completed, they did not address the prospects or timing of locating a suitable family-based placement.

6. Although Ms Shaw in her oral evidence before the Tribunal said that the Department was looking at trying to get the children into a permanent therapeutically and emotionally supportive long-term family-based placement, she did not give evidence of the prospects or timing of locating such a placement or give evidence on the basis of which the Tribunal could have made an assessment of such prospects and timing.

7. The intentions of the Department variously expressed between 10 December 2020 and 13 April 2021 to seek a family-based placement or placements suggest that there was some (greater than zero) prospect of locating a suitable placement or placements. However, the statement by Ms Pratt on 10 December 2020 that foster care was unlikely due to both children being CAT4 and there was low carer availability in the local area coupled with the oral evidence of Ms Shaw precluded any finding being able to be made on the evidence that the prospects of a family-based placement (let alone with carers with expertise in caring for children with the special needs of George and Louis) were good. The lack of any concrete evidence about the prospects of such placements rendered a finding as to prospects impossible to make.

8. If the Tribunal’s reasons could be construed as making a finding about the prospects and timing of an appropriate long-term family-based placement being located, such a finding would manifestly lack a rational foundation.

9. An alternative reading of paragraphs 184 and 185 is that the Tribunal hoped and trusted that a specialised family-based placement or placements could and would be located in a timely manner without making any assessment about the prospects of this occurring. If the Tribunal’s reasons are so construed, the Tribunal failed to consider a matter that it was required in the circumstances to consider, namely the prospects and timing of George and Louis being placed in the care of suitable alternative carers.

10. Because the Tribunal was undertaking the balancing exercise between alternatives that it identified at paragraphs 133 to 137 and 146 to 149 of its reasons for decision reproduced at [121] and [123] above as having been required to be undertaken by the Chief Executive and which it was now required to undertake, it was necessary for the Tribunal in its reasons to address the following matters by reference to the evidence adduced before it.

    1What were the prospects and likely timing of carers being located with expertise in caring for children with the special needs of George and Louis who were ready, willing and able to provide long-term care for George and Louis?

    2In the alternative, what were the prospects and likely timing of carers being located:

    (a)with such expertise on the basis of George being placed in the care of carers who were ready, willing and able to provide long-term care for him and Louis being placed separately in the care of different carers who were ready, willing and able to provide long-term care for him? or

    (b)without such expertise who were ready, willing and able to provide long-term care for George and Louis together? or

    (c)without such expertise on the basis of George being placed in the care of carers who were ready, willing and able to provide long-term care for him and Louis being placed separately in the care of different carers who were ready, willing and able to provide long-term care for him?

    3If George and/or Louis were placed in a residential facility, would the staff working in that facility have expertise in relation to working with children with the special needs of George and Louis?

    4Were the needs of George and Louis (including the needs referred to in sections 7 and 8 of the Act) better met by their removal from the care of the Archers (taking into account the prospects and timing of alternative placements the subject of the questions posed above) or by their remaining in the care of the Archers with appropriate support by the Department?

11. The Tribunal did not address these questions. The Tribunal did not have before it the evidence necessary to answer these questions. In the absence of addressing these questions (and having such evidence), the Tribunal was unable to determine whether the correct or preferable decision was removal of the children or their being left in the care of the Archers.

12. The evidence necessary to address these questions could have been relatively easily obtained. In the first instance, Ms Shaw could have been asked these questions during her oral evidence. The evidence that she gave reproduced at [377] above was vague and aspirational and questions that would have elucidated evidence that would have assisted in answering the questions posed above were not pressed. In the second instance, the Tribunal could have requested that the Chief Executive adduce evidence from Ms Pratt, of the Department’s Child Placement Unit, who attended the Complex Case Review Meeting on 10 December 2021, and made her available for questioning.

13. No documents were produced from the Department’s Placement Services Unit. The Tribunal had power to compel production of such documents and no doubt the Department would have produced them voluntarily on request.

14. No evidence was adduced whether rotational staff at the residential facility at which the children were to be placed had expertise in relation to the special needs of the children. This question could have been asked of Ms Shaw. If she did not know, no doubt the Department would have produced evidence about this on request by the Tribunal.

15. No evidence was adduced from Dr Lindsay or Ms Franklin about the extent to which the children’s needs were likely to be met by placement in care as opposed to placement in a residential facility. No doubt the Department would have arranged for Dr Lindsay and Ms Franklin to give evidence on request by the Tribunal.

16. The balancing exercise that the Tribunal identified was required to be performed is a very different exercise if the choice is between leaving the children in the care of the Archers or their being placed in the care of carers with expertise in the children’s special needs as compared to the choice being between leaving them in the care of the Archers or their being placed in a residential facility with rotational staff with such expertise or without such expertise.

17. There may of course be circumstances in which it is clear that conduct by carers is so bad that children in their care must be removed in the exercise of the power conferred by section 84(1)(c) of the Act without the necessity of undertaking a balancing exercise of the type referred to above (beyond ascertaining that the children can at least be placed somewhere). However, it is clear that the Tribunal did not regard this as such a case.

18. First, the Tribunal was critical of the Department for not undertaking such a balancing exercise: the Tribunal did not consider that the circumstances were such that removal was warranted regardless of the alternatives or adverse consequences of removal.

19. Secondly, as observed above the focus of the Tribunal was not on the specific incidents the subject of the care concerns but rather on perceived deficits in the care given by the Archers. The Tribunal said in its reasons that this was the focus of the Department’s decision-making and the Tribunal adopted the same focus. In relation to the most serious incidents, being the subject of concerns 12 and 13, the Tribunal merely said that it accepted the outcome of the investigation without giving any reasons or making its own findings on the balance of probabilities. In relation to the other incidents, the Tribunal merely dealt with them globally rather than giving reasons for making specific findings.

20. Thirdly, the Tribunal stated at paragraph 186 of its reasons that it had been a difficult decision and that it was one only made weighing up all of the competing considerations.

21. If the Tribunal had taken the view that the conduct of Mr Archer the subject of concerns 12 and 13 was so serious that a decision to remove George and Louis from the care of the Archers was inevitable regardless of alternatives or other considerations, the Tribunal would have said so and its reasons for decision would have been very different.

22. The seventh ground of appeal is established.

    Conclusion

23. The first to fourth grounds of appeal are not established.

24. The fifth to seventh grounds of are established. The seventh ground in itself vitiates the decision of the Tribunal. In the absence of consideration of and findings concerning alternative placements, based on evidence adduced at the hearing, the Tribunal was unable to undertake the balancing exercise that it identified was necessary. Whether or not the fifth and sixth grounds would in themselves have vitiated the decision of the Tribunal, the error by the Tribunal the subject of these grounds compounds the consequences of the error the subject of the seventh ground.

25. Given the merits of the appeal and the consequences to the Archers if leave is not granted, leave to appeal should be granted.

26. In their notice of appeal, the Archers seek an order setting aside the Chief Executive’s removal decision and returning George and Louis to their care. However, due to the lack of evidence relevant to the fifth to seventh grounds of appeal, I am in no position to determine the review on its merits. It must be remitted to the Tribunal for rehearing.

27. I propose to make the following orders:

    1Leave to appeal granted.

    2Appeal allowed.

    3The decision by the Tribunal affirming the decision of the Chief Executive’s delegate to remove George and Louis from the placement with Mr and Mrs Archer is set aside.

    4The review of the decision of the Chief Executive’s delegate is remitted to the Tribunal for rehearing.

28. I will hear the parties concerning any other orders sought.