CKW v Life Without Barriers

[2017] NSWCATAD 133

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CKW v Life Without Barriers [2017] NSWCATAD 133
Hearing dates:	31 August 2016, 15 November 2016
Date of orders:	27 April 2017
Decision date:	27 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member R Royer, General Member
Decision:	1. The decision of the respondent, made on 6 May 2016, to cancel the applicant’s authorisation as an authorised carer is set aside.  2. The decision of the respondent, made on 6 May 2016, not to return the children to the applicant’s care and control is affirmed.
Catchwords:	Administrative review – review of decision to remove three siblings from the care and control of their authorised carer – review of decision to cancel the applicant’s authorisation as an authorised carer.
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children and Young Persons (Care and Protection) Regulation 2012 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Review and Monitoring) Act 1993
Category:	Principal judgment
Parties:	CKW (Applicant) Life Without Barriers (Respondent)
Representation:	CKW (Applicant in person) J Smith, Solicitor (Respondent) Dr F Ainsworth (Guardian Ad Litem)
File Number(s):	1610081
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013

Reasons for decision

Introduction

1. The applicant, who will be referred to as CKW, is seeking review of the following two decisions made on 6 May 2016 by Life without Barriers, who is the respondent in these proceedings:

• the decision of Life Without Barriers to cancel the applicant’s authorisation as an authorised carer; and

• the decision of Life Without Barriers not to return three siblings to the applicant’s care and control.

2. We have considered all the material before us and for the reasons set out in this decision, we have determined that:

• the decision to cancel the applicant’s authorisation as an authorised carer is set aside; and

• the decision not to return the three siblings to the applicant’s care and control is affirmed.

Legal Principles

3. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application: see s 28 of the Community Services (Complaints, Review and Monitoring) Act 1993 and s 245 of the Children and Young Persons (Care and Protection) Act 1998.

4. The role of the Tribunal in hearing and determining this application is to decide the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: see subs 63(1) of the Administrative Decisions Review Act 1997. That is, the Tribunal sits in the shoes of the respondent and considers the matter afresh as at the time of the hearing.

5. Chapter 8 of the Children and Young Persons (Care and Protection) Act 1998 (‘the Care Act’) makes provision for out-of-home care and the authorisation of carers to provide such care.

6. Section 9 of the Care Act sets out its guiding principles, namely that in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

7. Section 137 of the Care Act defines what is meant by the term ‘authorised carer’ while the Children and Young Persons (Care and Protection) Regulation 2012 (‘the Care Regulation’) sets out procedures for the authorisation of carers by designated agencies, including procedures for the cancellation and suspension of such authorisations. There is no dispute that Life Without Barriers is a ‘designated agency’. (see section 139 of the Care Act).

8. According to clause 42 of the Care Regulation:

A designated agency may, by notice in writing, cancel or suspend the authorisation of an authorised carer if the agency is of the opinion that the authorised carer:

(a) is no longer a suitable person to be an authorised carer, or

(b) has failed to comply with any condition of the authorisation, or

(c) has failed to comply with any obligation or restriction imposed on the authorised carer by the Act or this Regulation, or

(d) has failed to comply with a written direction to the authorised carer by the designated agency or the Children’s Guardian under section 157 (3) of the Act, or

(e) has failed to uphold the Charter of Rights prepared under section 162 of the Act.

9. Clause 42CA of the Care Regulation provides the occurrence of any of the following events raises a presumption that the authorisation of a person as an authorised carer is to be cancelled:

(a) if the authorisation relates to the out-of-home care of a particular child or young person—the person has not provided out-of-home care to that child or young person for 3 months or more,

(b) the person has not provided out-of-home care to any child or young person under the authorisation for 2 years or more.

(2) A designated agency must cancel its authorisation of a person as an authorised carer on the occurrence of any such event unless the agency is satisfied that its authorisation should not be cancelled in the particular case.

10. The Care Regulation contains provisions in relation to information about authorised carers that is contained on a database called the ‘Carers Register’. Clause 86G of the Care Regulation provides as follows:

A designated agency must enter the following information about a person who is or has been an authorised carer (authorised by the agency) on the Carers Register within 14 days after becoming aware of the information:

(a) if the person died while authorised by the agency—that fact,

(b) if the person’s authorisation by the agency has been suspended—that fact and the date of that suspension,

(c) if the person’s suspension by the agency has ceased to have effect—that fact and the date that the suspension ceased,

(d) if the persons authorisation by the agency has been surrendered or cancelled—that fact, the date of that surrender or cancellation and any concerns the agency has arising from that surrender or cancellation in relation to the person’s suitability to care for a child or young person, or to reside on the same property as an authorised carer (being information that the agency would disclose in any designated agency check submitted to the agency in respect of the person).

11. Clause 86K of the regulations outlines the procedure to be taken to amend the Carers Register following overturned decisions:

(1) The Children’s Guardian must ensure that when the Carers Register is amended, to take account of any of the following decisions or records that have subsequently been overturned or changed (either by the relevant designated agency or by a tribunal or court), information about the original decision or record is available only to the relevant designated agency, the Children’s Guardian or a person referred to in clause 86M (2):

(a) a decision to refuse to grant an authorisation as an authorised carer,

(b) a decision to cancel an authorisation,

(c) a decision to suspend an authorisation,

12. Clause 86K of the Carers Register also considers the procedure for amending the register following a request by a person whose information is on the register:

(1) A person whose details are included on the Carers Register, or if the person is under 18 years of age, a parent of such a person, may request the Children’s Guardian to amend any information included on the register in relation to the person that is incorrect.

(2) The Children’s Guardian must comply with any such request if satisfied that the information is incorrect.

(3) The Children’s Guardian must notify the person making the request (and the relevant designated agency) of any action taken by the Children’s Guardian under this clause and provide reasons if the Children’s Guardian has determined not to fully comply with the request.

Background

13. The applicant became an authorised carer in 2001.

14. On 7 July 2008, she and her husband (from whom she is now separated) were given a placement of 3 siblings (‘the foster children’), consisting of one boy (‘the foster son’) and two daughters (‘the older foster daughter’ and ‘the younger foster daughter.’) At the time of placement, the foster son and the older foster daughter were assessed as having ‘intensive needs’ while the younger foster daughter was assessed as having ‘general needs.’

15. The applicant and her husband continued to be authorised as authorised carers, their most recent joint authorisation having been granted for a period of two years commencing on 2 July 2014 and stipulating that ‘carers are approved for the current long term sibling group.’

16. On 29 December 2015, the foster children were removed from the care of the applicant and her husband following an allegation by the older foster daughter that the applicant’s husband had inappropriately touched her.

17. On 18 January 2016, the applicant’s authorisation as an authorised carer was suspended by Mr Hedstrom from Life Without Barriers pending the completion of a Joint Investigation Response Team (‘JIRT’) investigation and a carer review assessment by an independent assessor.

18. On review to this Tribunal, the decision to suspend the applicant’s authorisation was remitted to Life Without Barriers on 29 April 2016 for reconsideration.

19. Having reconsidered the matter, on 6 May 2016 Life Without Barriers determined to instead cancel the applicant’s authorisation as an authorised carer. By this time, the allegation against her husband had been investigated by JIRT, the investigation concluded and no charges laid against him.

20. A carer assessment dated ‘March/April 2016’ was prepared by the social worker, Dr Zhofova.

21. The decision maker from Life Without Barriers accepted the findings of the independent assessor, Ms Zhofova, in relation to the applicant’s suitability to be an authorised carer. In particular, the decision maker found that:

• the applicant’s motivation for being a foster carer was based on financial gain;

• the applicant showed a preference for her biological son;

• in fostering, the applicant focused on her own needs;

• the applicant had not properly managed her mental health issues and presented as fragile and mentally unwell;

• despite fostering for 15 years, there remain issues in the applicant’s acceptance of Life Without Barriers in her life and her children’s life;

• support provided to the applicant has not been sufficient to overcome the existing concerns held by Life Without Barriers;

• the history of the applicant’s parenting and her husband’s parenting demonstrates that neither of them could meet the children’s needs arising from their neglectful/abusive backgrounds.

22. In cancelling the applicant’s authorisation as a carer, the decision maker from Life Without Barriers wrote to the applicant to say that:

having considered the carer review assessment by Ms Zhofova, the reasons for Mr Hedstrom’s decision of 18 January 2016, the internal review completed on 10 March 2016 and the Life Without Barriers records until the current date, I am of the view that you are no longer a suitable person to be an authorised carer and have therefore decided to cancel your authorisation as a Life Without Barriers authorised carer. I have also decided that the children should not be returned to your care.

23. Ms Smith for Life Without Barriers has confirmed that the decision to cancel the applicant’s authorisation for these reasons means that the words ‘cancelled – with concerns’ are now listed under the applicant’s name in the Carers Register.

24. Life Without Barriers continues to hold the view that the applicant fails to meet the basic standard to be a foster carer.

25. Attempts made to mediate this matter were unsuccessful.

26. On 9 May 2016, Dr Ainsworth was appointed as Guardian ad Litem to represent the interests of the foster children. Dr Ainsworth is of the view that whilst the applicant should not have the care and control of the children, her authorisation as an authorised carer should not have been cancelled.

Evidence

27. In the course of these proceedings, a substantial amount of written material was placed before us. Oral evidence was also given by:

• the social worker, Ms Zhofova;

• the clinical psychologist, Dr Banks;

• the Operations Manager for Life Without Barriers, Mr Hedstrom;

• the case manager for Life Without Barriers, Ms Page; and

• the applicant, CKW.

28. In considering this application for review, we have considered all the material before us, relevant parts of which are set out below.

Life Without Barriers – Carer Register Procedure

29. According to the Carer Register Procedure for Life Without Barriers, a carer’s authorisation will be cancelled in the following circumstances:

• if the authorised carer dies;

• if a bar or interim bar is placed on the person’s Working with Children Check clearance;

• if a decision is made by NSW Director of Operations that the person is no longer a suitable person to be authorised as a carer; or

• if the carer has not had a child in placement for two years, or if authorised for a specific child, if that child is not in placement for 3 months (Please note: there is provision to maintain authorisation in particular cases but we need to make a decision to continue authorisation and document the reason).

30. The procedures note that:

If the authorisation is cancelled due to concerns relating to complying with the carers authorisation conditions, obligations or restrictions, a risk to the safety, welfare or wellbeing of children, or a WWCCC bar, then the cancellation will be recorded as ‘Cancelled – with concerns.’

If the authorisation has been cancelled due to other reasons (for example because the person has a health condition or have moved, or the authorisation was only for certain children who are no longer in the placement) then the cancellation will be recorded as ‘Cancelled – no concerns.’

The decision to record the cancellation as ‘with concerns’ or ‘no concerns’ must be approved by the AOM and recorded in the Carers Register by a regional Carers Register User.

31. Attached to the Procedures is the NSW Child Safe Standards for Permanent Care issued by the Officer for the Children’s Guardian in November 2015. In relation to the Carers Register, the Standards note that the Office of the Children’s Guardian, the Department of Family and Community Services and the NSW Ombudsman have access to Carers Register information. Law enforcement, investigative, and child protection bodies in other jurisdictions may be provided with information held in the Carers Register. The Standards note that the Office of the Children’s Guardian maintains the Carers Register in accordance with the Children and Young Persons (Care and Protection) Act 1998 and the Children and Young Persons (Care and Protection) Regulation 2012.

Life Without Barriers Documentation

Psychologist letter to Life Without Barriers – 18 September 2014

32. In a letter dated 18 September 2014 from the psychologist John Waring to the foster son’s case manager at Life Without Barriers, the following observations are made:

[The foster son] is a young boy with a series of very difficult psychiatric conditions. [He] has reactive attachment disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, and is living in an Out of Home care situation.

[His] behaviour poses significant difficulties to both his carers and school, and I would certainly suggestion that respite care for his Foster Carers would be appropriate, to allow them to recharge their batteries to manage him.

Life Without Barriers case conference notes – 29 July 2015

33. Following a Life Without Barriers case conference for the younger foster daughter held on 29 July 2015, it was noted that there were no plans for a transition in relation to care, there were no legal issues, no safety or potential harm issues, no advocacy issues and no other elements to consider. It was further noted that the younger foster daughter ‘is comfortable in talking to her carers about her concerns. Carers monitor her to ensure any stress or emotional issues are appropriately managed and they guide [her] in managing her stress in positive ways.’

34. In a case conference for the foster son held on the 29 July 2015, it was noted that there were no plans for a transition in relation to care, there were no legal issues, no safety or potential harm issues, no advocacy issues and no other elements to consider. It was further noted that the foster son was attending respite on a monthly basis and that his carers ‘build up [the foster son’s] self-esteem by the regular use of praise, support and encouragement. It was noted that the foster son ‘is settled within this placement and….is comfortable talking with his carers about his concerns.’ According to the notes ‘carers monitor [the foster son] to ensure any stress or emotional issues are appropriately managed and they guide [the foster son] in managing his stress in appropriate ways.’

35. In a case conference for the older foster daughter held on the 29 July 2015, it was noted that she has ‘established a close and trusting relationship with her carer’ and that the ‘carers are committed to providing [her] with a care environment that is nurturing and stable, and to providing [her] with an ongoing, permanent placement. According to the notes, the older foster daughter ‘follows the household rules and routine and enjoys the structure that the carers have instilled in her home life.’ It is noted that there were no plans for a transition in relation to care, there were no legal issues, no safety or potential harm issues, no advocacy issues and no other elements to consider. It was noted that the older foster daughter ‘is comfortable talking with her carers about her concerns’ and that she is ‘a very happy and outgoing girl.’ According to the notes, her carers monitor [her] to ensure any stress or emotional issues are appropriately managed and they guide [her] in managing her stress in appropriate ways.’

Behaviour intervention support plan – 20 July 2015

36. In a behaviour intervention support plan for the foster son dated 20 July 2015 and prepared by a psychologist and manager for Life Without Barriers, the foster son is described as follows:

[The foster son] enjoys being around others within his home environment and likes to be kept busy with his favourite activities… [He] attends [sporting activities] with his siblings and carer. [He] gains great benefit from one-on-one time with his carers, particularly with his male carer when riding their motor bikes.

Life Without Barriers Carer Review Record - 6 October 2015

37. In a Care Review Record for the applicant and her husband, the reviewer noted that ‘the carers provide individual attention to each of the children by recognising their individual likes and dislikes….[The carers] provide appropriate warmth and affection to the children with cuddles, listening to their stories and report the children like having movie nights. The carers also take an interest in their lives.

38. However, the case reviewer stated in conclusion that she had ‘significant concerns regarding the safety of the [foster children]. This was because the children seemed unkempt and guarded around caseworkers when the applicant was present. The reviewer also felt that the applicant and her husband inflicted psychological harm on the foster son in the way they spoke about him. She also felt that the applicant favoured her biological son by holding a birthday party for him while the foster children were in respite.

39. The record gives the assessor the opportunity to:

• suspend the review on the basis that the issues raised affect the carer’s capacity to care to such a degree that they are no longer able to continue at Life Without Barriers carer; or

• to impose specific restrictions on their approval.

40. Neither option is selected in the record although in the Summary of the Carer Review, the assessor recommends that the applicant and her husband not be re-authorised as carers.

Clinical Review of Life Without Barriers Placement

41. A psychological assessment dated 16 December 2015 provided a ‘predictive opinion’ of the applicant’s ability to continue caring for the foster children following her separation from her husband.

42. The assessment noted that the applicant’s husband:

previously provided a significant support role in caring for [the foster children] and could moderate family dynamics at times of heightened stress for [CKW]. As a sole carer [CKW] will carry the full challenges on her own. It appears like [CKW’s] resources will quickly become overwhelmed by sole parenting responsibility with an increased possibility of an incident occurring.

43. The assessment outlined the strengths and benefits of the children’s placement with the applicant which included the fact that she had:

• provided long-term care for the foster children for 7 years;

• provided a semi-rural setting enabling the children to develop their swimming and riding skills;

• engaged the children in weekly sporting sessions;

• assisted the children in having their medical needs addressed;

• engaged the children in therapeutic services;

• engaged in carer training when offered;

• engaged new skills to the best of her ability;

• had taken the children on regular family weekends away.

44. A series of recommendations were made in the assessment, including:

• exploring alternative placement options for the children, that would be ‘able to demonstrate the ability to provide a higher level of security and belonging to justify the placement disruption caused by moving the children from a placement of seven years duration’;

• the applicant engaging in individual therapy in relation to her anxieties;

• ongoing case management by Life Without Barriers;

• ongoing clinical support; and

• Life Without Barriers exploring with the applicant any extra supports that might be helpful given her status as sole carer for four children.

Ms Zhofova

45. Ms Zhofova is a social worker who prepared a carer assessment for the applicant in March/April 2016. In her assessment, she confirmed that the applicant and her husband had earlier been authorised by Life Without Barriers as foster carers able to provide care for children and young people who were assessed to have ‘Intensive Needs’ and that the sibling group (‘the foster children’) had been placed in their joint care in July 2008. Her assessment notes that the foster son had a diagnosis of Reactive Attachment Disorder (RAD) and Attention Deficit Hyperactivity Disorder (ADHD) and that the older foster daughter girl, in addition to having sexualised behaviours, had been diagnosed with ADHD and Oppositional Defiant Disorder (ODD).

46. In her carer assessment, Ms Zhofova expressed the opinion that the fostering allowance was one of the applicant’s motivating factors to provide care for the foster children and that should the foster children, or any other children, be placed in her care, ‘this would need to be carefully monitored to ensure that the children’s allowances are used primarily to benefit them.’

47. Ms Zhofova also expressed concern about the applicant’s ongoing health problems with back and neck pain and stated that the applicant had advised her that ‘she had been experiencing high levels of anxiety while parents [the foster children] and this often resulted in spasms in her neck which could be accompanied by panic attacks.’ The applicant told Ms Zhofova that she didn’t believe that her physical health would impact on her capacity to care for the foster children because her back and neck have improved and because she believes she can manage her anxiety.

48. According to Ms Zhofova, the applicant said that ‘it was difficult for her to care for the [foster children] because of their history of abuse and neglect and her belief they experienced the same abuse as she had.’ According to Ms Zhofova, the applicant had been in fear of losing the foster children because each time she came in touch with Life Without Barriers, she felt judged, which triggered her need to be perfect in everything – as a parent, person or businesswoman – and this, in turn, focused her to hide all her problems and pretend everything was fine.

49. According to Ms Zhofova, the applicant told her that the removal of the foster children triggered her pre-existing traumas and that she has been experiencing acute grief and loss reactions.

50. According to Ms Zhofova:

[CKW] stated she is willing to work with the.Care Team in the future but it is highly likely that if the children are restored into her care and the crisis is over, that she will revert to her earlier behaviours and resent the Care Team’s role in her life. As a carer she did not demonstrate her long term willingness and motivation to be part of the fostering team.

51. Ms Zhofova expressed the view that the fact that the applicant considered the Care Team as a threat ‘has more to do with her mental health issues and her own insecurities than with the Care Team’s involvement and the personalities of the different case managers.’

52. Ms Zhofova made the following assessment of CKW’s communication and advocacy skills:

It seems that she can communicate well with others and that she can also present well particularly when she is mentally well. .. The comments on the [Life Without Barriers] files also indicated that [CKW] can at times be rigid in her views and that conflicts can escalate and this most likely occurs when she is not mentally well or feels threatened which again can be linked up with her mental health issues…[CKW] blamed the Care Team for not communicating their concerns to her at the time when they occurred. She also blamed the Care Team for the placement breakdown and for the children’s exit from her care and said that had she known about all of those concerns, she would have fixed them immediately.

53. Ms Zhofova expressed concern about CKW’s conflict resolution skills. According to Ms Zhofova, ‘given her anger and at times limited coping skills, it may be that she needs to address these first before she can develop her conflict resolution skills.’

54. Ms Zhofova noted that a number of concerns had been raised about the children’s psychological well being while living with the applicant and her husband. These included the financial motivation to take on the foster children, the different treatment given to the foster children and the applicant’s own biological child, the applicant’s verbally abusive behaviours and her slapping of the children.

55. According to Ms Zhofova, the applicant ‘holds Life Without Barriers responsible for not telling about their concerns which have led to the current investigations of reportable conduct matters but she also said that as far as Life Without Barriers’ concerns and reportable conduct matters are concerned, they should be focused on ‘big things’ rather than ‘fret’ about ‘the small things.’

56. Concerns were raised both by the applicant and her husband (prior to the couple’s separation) about problems they were experiencing in relation to the sexualised behaviour of the older foster girl towards their biological son and the foster boy’s aggression towards the biological son.

57. Ms Zhofova also noted the applicant’s continuing concern that the foster children would be removed from her care. According to Ms Zhofova, the applicant told her that

there were times when she was struggling with the children and not coping and she expected the children to be removed by [Life Without Barriers] or that she felt they would just have to go because she could not cope any more.

58. In recommending that the applicant not be approved as an authorised carer for Life Without Barriers and that the foster children not be placed in the applicant’s sole care in any capacity, Ms Zhofova found that the applicant did not meet the required competencies that would allow her to care for out-of-home care children.

59. In oral evidence before the Tribunal, Ms Zhofova confirmed her recommendation that the applicant is not suitable to foster children. This is because Ms Zhofova found that the applicant did not have the skills required of a foster carer. It is her view that she is less able to cope without her estranged husband living in the house with her. She is of the view that the applicant’s biological son has become like a little adult because of the applicant’s mental health issues and her inability to focus on her son’s needs. It is Ms Zhofova’s view that the applicant is unable to stretch herself any further.

60. Although the applicant and her husband had been assessed as suitable to foster children with intensive needs, it is Ms Zhofova’s view that they were unable to meet the intensive needs of the children who were placed with them. It is Ms Zhofova’s view that the applicant has much unresolved childhood trauma. Ms Zhofova is unable to see how these issues could be resolved. In Ms Zhofova’s view, the applicant is a woman with limited personal resources who requires long-term therapy.

61. Ms Zhofova agreed that her assessment was not based on any previous foster placements with the applicant but rather on the placement of the foster children and the mental health assessment of the applicant. It was on this basis that Ms Zhofova concluded that the applicant did not have the skill to be a foster carer.

Dr Banks

62. Dr Banks is a clinical psychological engaged by Life Without Barriers to provide a psychological assessment for the applicant for these proceedings. As part of his assessment, he interviewed the applicant and the three foster children.

63. In his interview with her, the applicant denied that her motivation for fostering the children was for financial gain.

64. The foster son expressed his desire to live with the applicant reporting that he had extra space to play and ride his motorbike when living with the applicant.

65. The older foster daughter told Dr Banks that she felt safe and secure with her current foster carers and also felt safe and secure with the applicant. She proposed having contact visits with the applicant on a monthly basis.

66. The younger foster daughter expressed the desire to remain with her current foster carers but to have contact visits with the applicant on a monthly basis, similar to the visits she has with her birth mother.

67. According to Dr Banks, throughout the time the foster children were in the applicant’s care,

the children’s interactions with [CKW] appeared to have been characterised by distrust, hyper vigilance on the children’s part, frequent disrupted attachments, [CKW]’s emotional vulnerability, and her lack of awareness of the children’s emotional state and safety…Her parenting style during observation would best be described as ‘permissive’…By [CKW]’s own accounts, she also appears to have previously engaged in ‘neglectful’ parenting styles, characterised by irritable or explosive discipline, emotional misattunement, dismissive of the children’s emotional needs, particularly when she felt heightened and increased stress. Compounded by her own emotional reactivity and sensitivity, she does not appear to have been responsive to the children’s needs. Both parenting styles are likely to have exacerbated the children’s insecurities and vigilance during the placement.

68. It is Dr Banks’ view that CKW ‘experiences significant difficulties demonstrating a minimum level of competency and skill necessary to provide a stable care environment sufficient to meet the children’s physical, educational, medical and emotional needs, respond to feedback provided, cooperate with the foster care agencies, and understand the impact of abuse and neglect on the children.’

69. According to Dr Banks, ‘at this stage [CKW] is not likely to be able to meet the children’s needs should they be returned to her care… While [CKW] does not intend to cause harm to the children, her parenting skills and capacity remain significantly impaired due to her unresolved childhood traumas, which inadvertently places the children at risk of harm.’

70. In oral evidence before the Tribunal, Dr Banks expressed his concern about the legacy of the applicant’s traumatic childhood and how this would impact on what she is able to bring as a foster carer to children who comes with complex needs and who are challenging.

71. It is Dr Banks’ view that the applicant could contribute to the foster care community by representing foster children and he applauds her efforts in seeking therapy. However he doesn’t think that the applicant is able to care for children of any ages as a result of the limited resources she is able ‘to bring to the table.’

Mr Hedstrom

72. Mr Hedstrom has been the regional Operations Manager for Life Without Barriers since 2011 and has 35 years’ experience working in child protection and in the out of home care sectors.

73. In an affidavit prepared for these proceedings, Mr Hedstrom confirmed that the applicant and her husband had been foster carers since 2001. The foster children the subject of these proceedings were placed with the couple in 2008. He confirmed that the foster children entered out-of- home care due to exposure to domestic violence, psychological harm and deprivation of basic needs. He confirmed that the foster boy has a diagnosis of Reactive Attachment Disorder (RAD) and Attention Deficit Hyperactivity Disorder (ADHD). The older foster girl has a diagnosis of Oppositional Defiance Disorder (ODD) and ADHD.

74. Mr Hedstrom stated that Life Without Barriers had had concerns about the foster children’s placement with the applicant and her husband since 2012 and had sought to ensure that the applicant and her husband were supported in the placement. He confirmed that an allegation had been made in December 2015 by the older foster girl that the applicant’s husband had touched her inappropriately. He confirmed that JIRT commenced an investigation into the allegation, that the investigation is now concluded and that no charges were laid.

75. Mr Hedstrom noted that Life Without Barriers had commissioned the report by Ms Zhofova

as a part of Life Without Barriers’s case management of the children to assist in the operational decision making of the agency, and not for the purposes of any litigation. The purpose of the review was to inform future decisions about the placement as well as the status of the carer’s authorisation as..[Life Without Barriers] foster carers.

76. Mr Hedstrom expressed his concern about the applicant’s individual capacity to care for all three children should they be returned to her care, noting that prior to their separation, the applicant’s husband had provided her with significant support, particularly for the foster son, by way of maintaining the foster placement. It is Mr Hedstrom’s view that it would not be consistent with the safety, welfare and well-being of the foster children to be returned to the applicant’s care.

77. In oral evidence before the Tribunal, Mr Hedstrom confirmed that he did not have any concerns in relation to the applicant’s capacity to parent her biological son. He confirmed that his concerns were for the foster children, but that none of his concerns were such that he would forward them to the Department of Family and Community Service (FACS). His concerns were not about the physical or sexual assault of the foster children but rather about on-going low-level neglect. The concerns had included the standard of care provided, including that the applicant had smacked the children, had demanded unreasonable things of them given their age, including to do their own washing, make their own school lunches and shower themselves. He was also concerned by the applicant’s apparent preferential treatment of her biological son, her disapproval of the foster son and desire to have him sent to respite care frequently.

78. He was concerned that despite Life Without Barriers working intensively with the applicant over a twelve-month period – including the provision of clinical support and access to training programs - there had been no evidence of any change by the applicant.

79. When asked how the applicant and her husband had ever been approved as foster carers, Mr Hedstrom replied ‘different times, different tools.’ He expressed the view that if the applicant were to apply to be a foster carer now, he didn’t think she could get through.

Ms Page

80. Ms Page is employed by Life Without Barriers as the case manager for the foster children. She expressed her concern about the effect on the foster children of a contact visit with the applicant in April 2016, and noted that the applicant’s biological son had been distressed when he had to leave the foster children at the end of the contact visit in June 2016. She also noted that the foster son’s school has noticed increasing complex behaviours following contact visits with the applicant. In the later months of 2016, the foster children had expressed the wish to cancel contact visits with the applicant when they had other activities planned. The older foster daughter had also expressed some anxiety about contact visits with the applicant as they reminded her of the applicant’s husband.

81. Ms Page confirmed that the current placement for the foster children is working well and that Life Without Barriers has been working towards a case plan goal of restoration of the foster children to their birth mother. For this reason, contact with the children’s birth mother has been increasing.

Assessment by Mr Learmouth

82. Mr Learmouth is the applicant’s treating psychologist. In an assessment dated 16 March 2016, he described her sadness at the removal of the foster children from her care, telling him that ‘the loss of the children has been significant for her’ and ‘that she has been the children’s mother since they were young and is grieving the loss’ and ‘finds it hard not to think about the children.’

83. Whilst the applicant’s scoring revealed elevated levels of tension, indecisiveness, restlessness and hyperarousal, Mr Learmouth found that her responses were not suggestive of major depressive disorder or dysthymia or the presence of post traumatic stress disorder.

84. Although he considered diagnostic criteria for adjustment disorder, anxiety and depression, he found that the applicant’s emotional responses were ‘in context to what are considered significant psychosocial stressors and her response was not considered a maladaptive reaction to this stressful life event and not in excess of identified stressors.’

The applicant, CKW

85. The applicant stated that from 2001 to 2008 she and her husband (from whom she is now separated) cared for four children as primary carers and also cared for children on a respite basis. In all, prior to the foster children the subject of these proceedings, she and her husband had cared for eleven children, many of whom had issues with sexualised behaviour, threatening and aggressive behaviour, violence and absconding, whilst some also had diagnoses of ADD and ADHD. She and her husband learned to manage the behaviour appropriately and gained an understanding of the reasons for the behaviour and strategies to manage the behaviours. This included attending a presentation on sexualized behaviours and completing courses in first aid, in reparative parenting for foster carers, in shared stories, shared lives,

86. In July 2008, the applicant became the authorised carer for the foster children who are the subject of these proceedings.

87. In her affidavits, the applicant outlines the medical intervention provided for the foster children, their progress at school and their behavioural issues. She states that she was aware of each of the children’s issues and engaged with appropriate services to address these issues. She listed programs she had attended in order to assist with her parenting of the foster children.

88. She confirmed that she and her husband separated in July 2015 and as a result of the allegations made against him, he left the family property entirely on 27 December 2015.

89. The applicant stated that:

I have provided optimum care for the children whilst they were in my care and was actively promoting their development and implementing very strategies to deal with the issues.

At all times I was mindful of each of the children's needs and made many changes to my life to support, nurture and provide a loving and stable environment for the children.

I did not favour [my biological son] over any of the children. I love all the children as if they are my own biological children.

90. The applicant noted that she had a meeting with Life Without Barriers on 29 July 2015 and set out a daily routine and her strategies when dealing with the children’s behaviours and general overview of the children’s lives. The document is comprehensive, outlining each of the children’s activities and appointments; their household responsibilities, including assisting with the washing, cooking and shopping and packing the dishwasher; the children’s peer relationships and friendships; their progress at school; their medical and dental appointments and eating habits.

91. The applicant denied ever having been diagnosed with an anxiety disorder. She denied ever stating that she was unable to cope with the behaviours of the foster children. She expressed her love of each of the children and her desire to have them returned to her. She stated that she was coping well given the circumstances, namely that she had separated from her husband and had the foster children removed from her.

92. The applicant noted that she had not been given the opportunity to reply to the findings made by Ms Zhofova in her carer assessment report. In her affidavits she sets out a detailed response to statements made by Ms Zhofova in relation to her parenting of the foster children. She stated that she is able to provide a safe and loving environment, which is nurturing for the foster children and that she continues to seek the children to be restored home to her care.

93. She outlined the steps she has been taking to prepare herself for the children’s return:

during the children's absence I have been working to prepare myself for the return; educating myself to cope with new behaviours using the training models I sourced from the Life Without Barriers website. I have also regularly been seeing a specialised sexual assault counsellor and social worker to help heal and develop strategies to be prepared to help and protect the children.. I also have regularly been seeing a clinical psychologist for assessment and I am completing a cognitive behaviour therapy training framework to help assist in my well-being and to build distress tolerance and relapse prevention. It has been reported that I am suffering from worry and sadness from losing the children but coping well. I have enrolled in Tai Chi to help with stress and sought professional assessment and care from my rheumatologist to help treat underlying medical conditions with my bones and soft tissue contributing to the muscle tension, pain and stress. I have also educated myself to better understand mental health by completing and gaining accreditation in a mental health first aid course.

94. She denied being motivated by financial gain to be a foster carer and denied having used the carer payments to pay her mortgage.

95. In oral evidence to the Tribunal, the applicant said that if the foster children weren’t to be returned to their mother and the applicant herself was emotionally stable, she would like the children to be placed back with her. She said that it would also be all right for the foster children to be kept in their current placement if they were happy and secure and that it should be their choice. The applicant said she was not asking Life Without Barriers to break the current placement but that if the placement were to fall through, she would ask to have them returned to her.

96. She said that she had been unaware that her most recent authorisation as an approved carer had been limited to the three foster children. She agreed that she had not sought an internal review of this condition as she ‘had not noticed it.’ She agreed that whilst she was not seeking the immediate return of the foster children because she didn’t believe that this would be in their best interests, she would like to be considered as an option for their placement.

97. She agreed that the younger foster daughter wishes to stay in the current placement, the foster son wishes to return to the applicant and the older foster daughter wishes to return to her birth mother. She agreed that she had last seen the foster children in June 2016. At the time of her oral evidence, she had not seen the children for five months.

98. The applicant said that she had been making significant process in terms of her own mental health and told the Tribunal that she hoped to be well enough to care for the foster children within three months. She told the Tribunal that she has done nothing wrong and had done everything required of her by Life Without Barriers. She is concerned that she ‘made herself vulnerable to give information’ to Life Without Barriers only to have them use it all against her. She is concerned that whilst she has fostered for sixteen years, Life Without Barriers has made a decision by considering only a snapshot in time from 2014.

99. It is her belief that the foster children weren’t returned to her because of the JIRT investigation, which dragged the process out, and now Life Without Barriers are telling her that she can’t appeal the decision because of the time that has elapsed. According to the applicant, ‘there is something very wrong.’

100. She feels aggrieved that she is now unable to foster other children and queries why no account was taking of ‘the things I did right’ and the fact that she was dedicated to the high needs of the foster children. In particular, she noted her work in getting the younger foster daughter into a gifted and talented class at school, her constant work attending to the foster children’s dental, optical needs and occupational therapy. She agreed that she made little mistakes but told the Tribunal that she finds the whole process so inhumane.

CONSIDERATION

101. There are two issues to be considered:

• whether the decision by the respondent, made on 6 May 2016, not to return the children to the applicant’s care and control was the correct and preferable one; and

• whether the decision by the respondent, made on 6 May 2016,to cancel the applicant’s authorisation as an authorised carer was the correct and preferable one.

Was the decision of the respondent, made on 6 May 2016, not to return the children to the applicant’s care and control the correct and preferable one?

102. There is no dispute that the three foster children have high needs, in particular the older foster daughter, who has a diagnosis of ADHD and ODD, and the foster son, who has a diagnosis of ADHD and RAD. There is no dispute that the foster son can be aggressive and that the older foster daughter has sexualised behaviour that has required psychological intervention.

103. It is conceded by the applicant that the needs of the children were difficult to meet while the applicant was living with her husband and required the children to have regular respite care. The applicant is now a single mother with the primary care of her biological son. She has had to deal with the allegations made by the older foster daughter against her husband, the removal of the foster children from her care and the breakdown of her marriage. It is not surprising that she admitted to feeling anxiety and grief and had difficulty coping in the aftermath of such events.

104. The applicant herself had a difficult upbringing marked by violence in the home and the later suicide of her much loved sister. We have been impressed by the steps the applicant has taken to heal herself in the wake of her childhood traumas and the later events as set out above. We are also impressed that she has sought psychological assistance to help her manage what is a difficult time in her life.

105. The fact remains, however, that as a single mother, the applicant no longer has the day-to-day assistance of her now estranged husband to assist with child-rearing. This is now left solely to the applicant.

106. We share the concerns of Mr Hedstrom, Dr Banks and Dr Zhofova about the applicant’s individual capacity to care for all three foster children should they be returned to their care given that, during the placement, the applicant’s now estranged husband had provided her with significant support, particularly for the foster son.

107. On the evidence before us, it is our view that as a single mother, the applicant is not in the position to properly manage the needs of the three foster children.

108. Furthermore, the evidence before us – and as accepted by the applicant in her oral evidence – is that the foster children are doing well in their current placement.

109. For these reasons, and having considered all the material before us, it is our view that the decision by the respondent, made on 6 May 2016, not to return the children to the applicant’s care and control was the correct and preferable one and so should be affirmed.

Was the decision by the respondent, made on 6 May 2016, to cancel the applicant’s authorisation as an authorised carer the correct and preferable one?

110. On the evidence before us, we are satisfied that the applicant’s most recent authorisation, limited to the care of the ‘current long term sibling group’ was granted on 2 July 2014 for a period of 2 years.

111. According to Ms Smith for Life Without Barriers, the legislation is silent in relation to the lapsing of such authorisations. The authorisation itself is, however, very clear. Under the heading, Period of Authorisation it states that ‘This authorisation (carer review) is valid for two years unless circumstances require a carer review earlier.’

112. On this basis, we are satisfied that this authorisation lapsed on 2 July 2016. We are also satisfied that the applicant had not since been re-authorised as an authorised carer.

113. The decision to cancel the authorisation was made on 6 May 2016, which is four and a half months after the foster children had been removed from the care of the applicant and her husband.

114. Clause 42CA of the Care Regulation provides that a presumption is raised that the authorisation of a person as an authorised carer is to be cancelled if the authorisation relates to the out-of-home care of a particular child and the person has not provided out-of-home care to that child for 3 months or more.

115. Life Without Barriers could, therefore, have chosen to cancel the applicant’s authorisation for this reason alone. Instead, the applicant’s authorisation was cancelled for the following reasons:

• her motivation for being a foster carer was based on financial gain;

• she showed a preference for her biological son;

• in fostering, she focused on her own needs;

• she had not properly managed her mental health issues and presented as fragile and mentally unwell;

• despite fostering for 15 years, there remain issues in her acceptance of Life Without Barriers in her life and her children’s life;

• the support provided to her has not been sufficient to overcome the existing concerns held by Life Without Barriers; and

• the history of her and her husband’s parenting demonstrates that neither of them could meet the children’s needs arising from their neglectful/abusive backgrounds.

116. In determining whether the decision to cancel the applicant’s authorisation as an authorised carer was the correct and preferable one, we will consider each of these factors in turn.

CKW’s motivation for being a foster carer was based on financial gain

117. On the evidence before us, we are not satisfied that this concern has been made out.

118. We accept that the applicant and her husband were concerned when the carer allowance was reduced in 2012 and again in 2014. On the evidence before us, we are not satisfied that this is because the applicant was motivated by financial gain but rather because the expenses associated with raising the three children were great. We accept that the foster son and the older foster daughter had multiple medical and therapeutic needs that required both a financial outlay and time taken by the applicant to get them to their various appointments.

119. The evidence before us is that the needs of the foster children were met in terms of food and clothing as well as toys and equipment and extracurricular activities. We are not satisfied that in caring for the foster children, the applicant was motivated by financial gain.

CKW showed a preference for her biological son

120. It has been suggested that the applicant told the foster children to call her “Ms [X]’ instead of Mum. On the evidence, this started in 2012, after the birth of her biological son. According to documentation contained on file, however, the children had reverted to calling the applicant and her husband Mum and Dad by 2015.

121. On the evidence before it, it appears that this came to the attention of Life Without Barriers in 2012 and that a clinician worked with the applicant to understand how being told not to call the applicant ‘Mum’ would have impacted the children.

122. We accept the concerns of Dr Banks and Dr Zhofova that by telling the foster children to no longer call her ‘Mum’ their sense of security would have been impacted. We are also satisfied that with the assistance of support from Life Without Barriers, the applicant became and remains cognisant of this. We note that with full knowledge of this situation, Life Without Barriers re-authorised the applicant in 2014. On the evidence before us, we are not satisfied that this would warrant the cancellation of the applicant’s authorisation.

123. Concerns were raised in relation to an occasion when the biological son had a birthday party while the foster children were on respite. In explanation, the applicant told the Tribunal that there were occasions where she felt unable to supervise all the children, particularly with toddlers and young children around. On the occasion in question, the applicant had invited the respite carer to bring the foster children along but she had not done so. We accept the applicant’s evidence and are not satisfied that this is indicative of favouritism towards her biological son.

124. We accept the applicant’s evidence that she and her husband would celebrate a family birthday dinner for all the children every year.

125. Whilst we are satisfied that the applicant was always cognisant of the need to supervise her biological son, who is substantially younger than the foster children, we are not satisfied that this can be called favouritism. It is not disputed that the foster son has problems with aggression and the older foster daughter has sexualised behaviour. To be vigilant for the protection of the younger child in light of this does not, in our view, show unwarranted favouritism but rather careful parenting practices.

126. On the evidence before us, we are not satisfied that this concern has been made out.

In fostering, CKW focused on her own needs

127. The evidence before us is that the applicant was heavily involved in all aspects of the foster children’s lives. It is not disputed that she was responsible for the younger foster daughter being accepted into the gifted and talented program both at primary and secondary level. It is also not disputed that the foster son and the older foster daughter had substantial medical and clinical needs and that the applicant would take them to their appointments and ensure they had their medication. In her oral evidence before us, the applicant displayed a strong awareness of the foster children’s strengths and talents, likes and dislikes.

128. On the evidence before us, we are not satisfied that in fostering, the applicant focused on her own needs.

CKW had not properly managed her mental health issues and presented as fragile and mentally unwell

129. Although Dr Zhofova refers to the applicant as having ‘mental health issues,’ specifically anxiety disorder, this is not accepted by the applicant’s treating psychologist, Mr Learmouth, who is of the view that the applicant does not have a diagnosed mental illness but rather ‘exhibits symptoms of stress and anxiety commensurate with her difficult personal circumstances, namely the breakdown of her marriage and the removal of the foster children.’

130. The evidence before the Tribunal is that the applicant has now gained accreditation in a mental health first aid course and continues to seek treatment and stay fit to ensure her mental wellbeing.

131. On the evidence before us, we are not satisfied either that the applicant is mentally unwell or that she has mental health issues. By contrast, we are satisfied that the applicant has experienced a series of stressful circumstances that she is taking steps to manage.

Despite fostering for 15 years, there remain issues in CKW’s acceptance of Life Without Barriers in her life and her children’s life

132. In her oral evidence before us, the applicant described her actions in following recommendations made by Life Without Barriers.

133. On the evidence before us, we are satisfied that the applicant has made substantial efforts to accept Life Without Barriers and to implement their recommendations and directives.

134. We accept that she has been using training models sourced from the Life Without Barriers website to educate herself to cope with behavioural issues that may arise in a placement.

135. On the evidence before us, we are satisfied that the applicant is supportive of Life Without Barriers’ efforts to prepare the foster children to be returned to their birth mother. We are also satisfied that the applicant is accepting of the current placement chosen for the children by Life Without Barriers but wishes to be considered as an alternative should that placement fall through.

136. On the evidence before us, this concern had not been made out.

Support provided to CKW has not been sufficient to overcome the existing concerns held by Life Without Barriers

137. We accept that support was provided by Life Without Barriers in the form of clinical support, access to training programs and respite care.

138. We agree with Mr Hedstrom and Dr Banks that, in her current circumstances, even an increase in such support would still leave the applicant as a single mother seeking to care for her biological son in addition to the three foster children.

139. We accept that the concerns of Life Without Barriers are well-founded in this regard although we don’t agree that as a result of this concern, the applicant’s authorisation should have been cancelled.

The history of CKW and her husband’s parenting demonstrates that neither of them could meet the children’s needs arising from their neglectful/abusive backgrounds

140. For the purposes of these proceedings, the parenting skills of the applicant’s estranged husband will not be considered given that he has now surrendered his authorisation.

141. There is no dispute that the foster children’s needs are high – especially those of the foster son and the older foster daughter. We accept the opinion of the psychologist Mr Waring that the foster son ‘is a young boy with a series of very difficult psychiatric conditions’ and that ‘his behaviour poses significant difficulties to both his carers and school.’ We also accept that the older foster daughter’s sexualised behaviours have required ongoing medical and clinical intervention.

142. These are children whose needs were always going to be difficult to meet given their medical diagnosis and ongoing behavioural issues. Indeed, even in the early stages of their current placement, it seems that intervention was required by the case manager for Life Without Barriers.

143. On the evidence, we are satisfied that there is much to admire in relation to the applicant’s care of the foster children. We accept that she sought medical advice and care for the foster children as required and was engaged in the children’s schooling. We are also satisfied that she is seeking support to deal with her difficult background. We also accept Mr Hedstrom’s evidence that he ‘did not have any concerns in relation to the applicant’s capacity to parent her biological son.’

140. On the evidence before us, we are not satisfied that the applicant’s history of parenting demonstrates that she was unable to meet the foster children’s needs. Rather we are satisfied that any single parent – as she now is - would find it difficult to meet the needs of the foster children.

Power to cancel

145. The power to cancel an authorisation for an authorised carer is discretionary: even where one or more of the specified grounds of cancellation are established, there remains a discretion as to whether an authorised carer's authorisation should be cancelled or suspended. That discretion, in our view, should be exercised in accordance with the objects and principles of the Act, namely that the safety, welfare and well-being of children are paramount.

146. On the evidence before us, we are satisfied that the correct and preferable decision is that the decision of Life Without Barriers on 6 May 2016 to cancel the authorisation of the applicant should be set aside.

147. This is because of all the concerns raised as reasons to cancel the authorisations, we are satisfied that only one has been made out, namely that the support provided to the applicant has not been sufficient to overcome concerns held by Life Without Barriers. At the time of decision, these concerns are, predominantly, that the applicant is now a single mother. We are not satisfied that any of the other concerns raised have been made out.

148. Given that the applicant’s authorisation has now lapsed and she has no authorisation as an authorised carer in any case, we are satisfied that we should exercise our discretion to find that, in the circumstances of this case, the applicant’s authorisation should not have been cancelled.

CONCLUSION

149. For the reasons set out above, we have found that the decision made by the respondent, Life Without Barriers, on 6 May 2016 not to return the foster children to the applicant’s care and control is the correct and preferable decision and the appropriate order is to affirm that decision.

150. For the reasons set out above, we have found that the decision made by the respondent, Life Without Barriers, on 6 May 2016 to cancel the applicant’s authorisation is not the correct and preferable decision. Hence the appropriate order is to set aside that decision. This does not alter the fact that, as her authorisation lapsed on 2 July 2016, the applicant is no longer authorised to be an out-of-home carer. As set out above, the applicant’s now lapsed authorisation was, in any case, limited to the three foster children who had been in her care prior to their removal.

151. The entry for the applicant in the Carers Register should be altered to reflect this decision.

Orders

152. For the reasons we have set out, we make the following orders:

1. The decision of the respondent, made on 6 May 2016, to cancel the applicant’s authorisation as an authorised carer is set aside.

2. The decision of the respondent, made on 6 May 2016, not to return the children to the applicant’s care and control is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 27 April 2017