DCR and DCS v Challenge Children's Services

[2017] NSWCATAD 382

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DCR and DCS v Challenge Children’s Services [2017] NSWCATAD 382
Hearing dates:	28 June 2017, 23 August 2017, 19 September 2017
Date of orders:	19 September 2017
Decision date:	19 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member F N Given, General Member
Decision:	The decision of the Respondent to remove from the Applicants the responsibility for the daily care and control of the children under consideration is affirmed
Catchwords:	ADMINISTRATIVE REVIEW- Decision by designated agency under Children and Young Persons (Care and Protection) Act 1998 (NSW)- removal of children from care and control of authorised carers- evidence of police investigation and proceedings relevant to the decision accepted in redacted form- non-publication and non-disclosure orders made- failure of carers to comply with related directions- finding that no practical alternative decision available in the circumstances- decision affirmed. EVIDENCE AND PROCEDURE- non-publication and non-disclosure orders- s 64 Civil and Administrative Tribunal Act (No.2) 2013 (NSW)- treatment of reports and availability of redacted version to applicants- Tribunal’s decision based on redacted version.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act (No.2) 2013 (NSW) Civil and Administrative Rules 2014 Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	AQY and AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DCR and DCS (Applicants) Challenge Children’s Services (Respondent)
Representation:	In person (Applicants) In person (Respondent: Days 1 and 2) Solicitors: NCS Law (N Shepherd) (Respondent: Day 3)
File Number(s):	2017/00169966
Publication restriction:	Publication of information that will identify the Applicant, witnesses, the children or any person to whom these proceedings relate or who is mentioned in them or otherwise involved in the proceedings and any evidence given in the proceedings which is likely to identify any of those persons is prohibited under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) and section 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Under s 65(4) of the Civil and Administrative Tribunal Act, the name of a person includes a reference to any information, picture or other material that identifies that person or is likely to lead to the identification of that person.

reasons for decision

What is this matter about?

1. The applicants, DCR and his wife DCS (who we shall refer to in these reasons collectively as “the authorised carers”) live in a small country town in New South Wales. DCS’s daughter, who we shall refer to as KBQ, and her husband, who we shall refer to as TSQ, live in close proximity to DCR and DCS. On 14 December 2014 DCR and DCS became the authorised carers of a 12-year-old boy, who for reasons of confidentiality we shall call NYP and his sister (collectively, “the children under consideration”).

2. Challenge Children’s Services (who we shall refer to as “Challenge”) was the designated agency for the children within the meaning of section 139 of the Children and Young Persons (Care and Protection) Act. Challenge had power under that Act and related legislation to make decisions about the custody and care of the children, including any decision to remove from the authorised carers the responsibility for the children’s daily care and control. That is what happened. By a decision made by Challenge, apparently on 30 May 2017, the role of DCR and DCS as authorised carers was effectively terminated: the children were removed from their carer and control.

3. By their application, the authorised carers ask us to review that decision and to set the decision aside so that they may again be the authorised carers for the children under consideration.

4. The principal issue for us is whether we should do what the applicants ask, or whether we should make one of the other orders available under the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), as explained at [12] and [13] below.

The statutory framework

Jurisdiction of the Tribunal

5. This Tribunal may hear an administrative review of decision made by a “relevant decision-maker” if it is a decision referred to in section 245 of the Children and Young Persons (Care and Protection) Act (which we shall call “the Care and Protection Act”), for the purposes of s 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993. It seems clear and is not contested that:

1. in the circumstances of this case, Challenge is a relevant decision maker for that purpose; and

2. the class of decisions which we are able to review includes a decision to remove from authorised carers the responsibility for the daily care and control of a relevant child or young person: s245 (1) (c) of the Care and Protection Act; AQY and AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 at [20]; per Campbell JA.

Section 9 principles under the Care and Protection Act

6. Section 9 of the Care and Protection Act sets out important principles relevant to this case. The section is in the following terms:

“9   Principles for administration of Act

(1) This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2)  Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

(a)  Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

(b)  In all actions and decisions made under this Act (whether by legal or administrative process) that significantly affect a child or young person, account must be taken of the culture, disability, language, religion and sexuality of the child or young person and, if relevant, those with parental responsibility for the child or young person.

(c)  In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(d)  If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(e)  If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

(f)  If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.

(g)  If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.”

The Tribunal’s procedure and the “Guiding Principle”

7. By operation of section 38 of the Civil and Administrative Tribunal Act:

1. the Tribunal may determine its own procedure in relation to any matter for which that Act or the Civil and Administrative Rules 2014 (NSW do not otherwise make provision;

2. the rules of evidence do not bind the Tribunal, except in relation to privilege disclosures for example disclosure under section 128 of the Evidence Act 1995, and

3. the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms.

8. Under section 36 of the Civil and Administrative Tribunal Act:

1. a “guiding principle” is set out in subsection (1). It requires the facilitation of the just, quick and cheap resolution of the real issues in proceedings in the Tribunal;

2. under subsection (2), the Tribunal must seek to give effect to that “guiding principle” when it exercises any power or interprets any provision under that Act or the Rules referred to above; and

3. under subsection (3), each party to the proceedings and any Australian legal practitioner representing a party in those proceedings must assist the Tribunal to do this.

The Tribunal’s role and powers in considering an administrative decision

9. Sub-section 63 (1) of the ADR Act prescribes the role of the Tribunal in determining an application for administrative review as:

“… to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.”

10. Subsection 63(2) allows the Tribunal, for the purpose of making its decision, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

11. The effect of these two subsections is often described as the Tribunal being required to “stand in the shoes” of the administrator who made the decision. As is often the case with these general tags, that is not entirely accurate. The Tribunal is required to decide what the correct and preferable decision is having regard to the material that is before it at the hearing. That may of course include material which was not available at the time of the making of the decision. The Tribunal’s decision must be made “as things stand” at the hearing, not as they stood when the administrator made his or her or its determination. It is clear that the Tribunal may take into account material that was not before the primary decision-maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

Possible outcomes

12. Subsection 63 (3) of the ADR Act set out the range of possible outcomes of an administrative review by this Tribunal. Having determined an application, the Tribunal may decide:

1. to affirm the decision;

2. to vary it;

3. to set the decision aside and make a decision in substitution for it;

4. to set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations made by the tribunal.

13. Additionally, by operation of s 65 (1) of the ADR Act, at any stage of proceedings the Tribunal may decide to remit the decision to the administrator who made it, for reconsideration.

Uncontested facts

14. The facts recited in [1] and [2] above are uncontested. The following pertinent facts also appear to be uncontested:

1. At the time of the decision under consideration and at the time of the giving of the directions by Challenge (discussed in more detail at [22] and following paragraphs), TSQ had been subject to investigation by Police in relation to possible criminal charges which related to offences against children.

2. Subsequently, on a date which was not disclosed to us, TSQ was charged with certain criminal offences, being offences relating to children.

Non-disclosure orders: redacted disclosure of confidential documents

15. A substantial part of the first two days of the hearing was occupied with the collation and proper treatment of documentation provided to the Tribunal by Challenge, consistent with its obligations under section 58 of the ADJR Act. That was because Challenge sought orders under section 64 of the Civil and Administrative Tribunal Act preventing disclosure to the applicants of every item of its section 58 documentation.

16. On the first day of the hearing, 28 July 2017, we made an interim confidentiality order and we also ordered Challenge within 21 days to provide a statement in accordance with s 49(2) of the ADJR Act, that is a statement of the reasons for the decision under consideration. On the second day of the hearing, 23 August 2017 we held a confidential session for approximately 40 minutes in which the representatives of Challenge participated but from which the applicants were excluded. In that session we commenced but did not complete an analysis of the section 58 documentation with a view to redacting material which in our view might properly be considered as confidential. In brief, the central reason for the confidentiality request was the ongoing police investigation and prosecution of TSQ.

17. Because, unfortunately, the redaction process could not be completed during the time allowed for the hearing on 23 August 2017, the matter was again adjourned. The third day of the hearing, on 19 September 2017, commenced with a brief confidential session at which the representatives of Challenge handed up the relevant items of the section 58 documentation with proposed redactions. The Tribunal members considered the proposed redactions off the bench. We then resumed the hearing in open session, including the participation of the applicants, in which we made orders that the previous section 64 order should be varied so as to allow redacted documents in the form approved by the Tribunal to be provided to the applicants. We have referred to the documentation in that for, in these reasons, as “the “final redacted version”. The applicants were given the opportunity to examine the final redacted version (the relevant parts which comprised approximately 20 pages), as is noted in more detail at [27] below.

The real issues

Preliminary observation: the parties’ knowledge of the police investigation of and charges brought against TSQ

18. In order to ascertain whether Challenge’s decision was the correct and preferable one, it is not necessary for us to be satisfied that the authorised carers knew at any given time that TSQ was subject to investigation by the police, or that they or either of them became aware prior to the removal of the children that criminal charges had been laid against him. We mention this because it was a subject of contention by the parties at the hearing and in particular we understood DCS to assert on behalf of herself and DCR that although they were aware by the time of the commencement of the hearing of the police investigation and the fact that TSQ had been charged and arrested and was on bail, they did not know of the investigation or the criminal charges prior to the date of the decision under review.

What then are the real issues?

19. We see the real issues as being these:

1. Were the directions which Challenge gave to the authorised carers (that is, not to leave the children unsupervised or in the care of TSQ and KBQ) proper and appropriate?

2. If they were proper and appropriate, did the authorised carers, that is, DCR and DCS, comply with those directions?

3. If they did not comply, did their failure to do so, of itself or coupled with other matters which had come to the knowledge of Challenge, justify Challenge’s decision to remove the children from the custody of the authorised carers?

4. Was there any practical alternative decision which might be preferable?

20. We shall deal with the issues in turn.

21. We shall refer to the document tendered by Challenge as part of the section 55 documentation and headed “Allegation Risk Assessment CC10.1b”, prepared by Challenge on 30 May 2017, as “the Allegation Risk Assessment”.

Were the directions to the authorised carers proper and appropriate?

22. As noted above at [19] (1), the relevant directions were those given by Challenge to DCR and DCS and were to the effect that DCR and DCS should not leave the children unsupervised or in the care of TSQ and KBQ. Challenge asserted that, based on information received in “Risk of Significant Harm” reports, it had given such directions to DCR and DCS on four separate occasions, namely on 9 and 12 December 2016, 14 March 2017 and 24 May 2017. That is confirmed at page 2 of the Allegation Risk Assessment.

23. The date and nature of the directions were not contested by DCR or by DCS or otherwise controverted.

24. We were satisfied that in the circumstances these directions were proper and appropriate. In reaching that conclusion, we relied on the following documentation and facts.

1. The Code of Conduct for authorised carers provides that authorised carers should:

1. not discharge a child into the care of any other person (other than specified people such as staff members of a designated agency) without the written approval of the principal officer of the designated agency or his or her delegate; and

2. provide a care environment where the child is not exposed to physical, sexual, psychological or verbal abuse, ill-treatment or neglect.

2. On page 2 of the Allegation Risk Assessment, Challenge asserted that on 26 May 2017 DCR and DCS signed an agreement that they would not leave the children in the care of TSQ and KBQ and which also set out the likely repercussions if they breached this obligation.

3. Challenge also asserted that at about this time NYP had been placed in respite due to concerns that he had been placed at risk of harm.

4. As recorded in the Allegation Risk Assessment, TSQ was at the date of that report (30 May 2017) the subject of serious allegations of sexual abuse and a police investigation in relation to those allegations. That fact appears to be uncontested by DCR and DCS.

5. Those allegations against TSQ included information supplied by two young people who had previously resided with DCR and DCS and who had more recently been in the care of TSQ and KBQ.

6. Challenge further asserts that DCS had previously failed to communicate important information concerning children under her care to Challenge, in that she had failed to report medical and psychologist’s appointments, incidents at the home and at school, including injuries sustained in an accident at school.

7. We understood Challenge to assert that DCR and DCS’s supervision of the children was particularly difficult to monitor, given the close proximity of the residence of TSQ and KBQ to that of DCR and DCS.

8. Challenge indicated a belief that DCS and her extended family had attempted to obstruct Challenge’s contact with NYP. DCS denied that this was so, but Challenge relied on alleged extracts from text messages on NYP’s phone in making this assertion.

25. Challenge’s assertions set out at [24] (1)-(5) were not contested by DCR or by DCS and were not otherwise controverted, although DCS disputed the assertions at [24] (6) and (8). In relation to the assertions in [24] (6), it is evident from the section 58 documentation even in its redacted form, and in particular from a detailed consideration of the Allegation Risk Assessment and the related correspondence, that these assertions have been consistently raised and details put to DCS (see for example on page 2 of the Allegation Risk Assessment under the heading “Factors the consideration”, third paragraph.) Because the allegations are long-standing and have been put to the authorised carers or at least one of them on several occasions in the absence of any apparent explanation (as opposed to a strenuous denial) from the authorised carers, we accept the assertions as reliable.

25. In relation to the assertions in [20] (8), all that is necessary for Challenge to establish is that on the basis of the facts stated in that paragraph, it had formed a reasonable belief that DCS and her extended family had attempted to obstruct Challenge’s contact with NYP. Our consideration of the Allegation Risk Assessment and accompanying material (in their redacted form) provides ample support for the conclusion that a belief to that effect was reasonable and we therefore accept Challenge’s assertions in this regard.

26. For completeness, in respect of DCR’s and DCS’s reaction to these assertions we note that the “final redacted version” of Challenge’s section 58 documentation, comprising approximately 20 pages of forms and report material (much of which was repetitive) was made available to DCR and DCS only upon our making our amended s64 non-disclosure orders, (see [15] to [17] above). That occurred at approximately 2.45pm on the final day of the hearing. When the hearing resumed at 3.05pm DCS indicated that she had not finished reading the documents. We offered her more time to do so, but she insisted that the hearing should proceed. DCS then made oral submissions for approximately 20 minutes and DCR did the same for approximately 5 minutes. DCS and DCR were given the opportunity to respond to the subsequent oral submissions by the solicitor representing Challenge. DCS did so.

27. We accept that DCR and DCS had only limited time to read the final redacted version of the documents but note that they rejected the opportunity which we gave them to have further time to do this.

28. The assertions summarised at [24] were referred to by the solicitor for Challenge in her extensive oral submissions, but the assertions noted at [24] (2) to (5) and (7) were not contested by the applicants in their closing submissions, although they did contest other aspects of what they perceived to be Challenge’s case, as noted at [39] below. We accept those uncontested assertions and make corresponding findings of fact.

29. We are satisfied that those uncontested facts are sufficient to justify the directions given by Challenge to DCR and DCS in the circumstances. Such a conclusion is further justified by our findings that the remaining assertions by Challenge, being those noted at [20] (6) and (8), are reliable.

30. We find that the directions were proper and appropriate.

Did the authorised carers comply with those directions?

32. We did not understand the case put by the authorised carers to include a contention that they had complied with the directions. They did not direct any evidence or contentions to that point and there was nothing in the evidence as a whole to support such a contention. What is clear from the evidence, including the section 58 documents in their redacted form, is that the authorised carers did not comply with the directions.

Did their non-compliance justify the removal of the children under consideration from the care of the authorised carers?

33. As noted at [11] above we are required, under the relevant provisions of the ADJR Act, to decide what the correct and preferable decision is having regard to the material that is before us at the hearing and that may include material which was not available to Challenge at the time of the making of the decision. So our decision must be made “as things stand” at the hearing and we may take into account material that was not before the primary decision-maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

34. We commenced our consideration of this issue by having regard to whether, judged at the day of the hearing, the application of the principles set out in section 9 of the Care and Protection Act (which are cited in full at [6] above) would justify a decision to remove the children under consideration from the care of the authorised carers.

1. Most significantly, the section sets out a paramount factor in subsection (1) which is that in any relevant action or decision, the safety, welfare and well-being of the child are paramount. Clearly that consideration must outweigh application of the other factors set out in subsection (2). In our view, on the basis of the documentary evidence in its redacted form, that principle could only be properly applied by the decision to remove the children under consideration in this case from the care of DCR and DCS. That is clearly the case because of their failure to comply with the directions from Challenge, which we have found to be proper. That failure was of very serious import in the circumstances. That was because in what we have found to be Challenge’s validly formed belief, an adult person, TQS, who was under Police investigation and who was subsequently charged with significant criminal offences concerning children, was being allowed ongoing access to the children under consideration.

2. In so far as the other section 9 factors are concerned, we are satisfied on our examination of the redacted section 58 material that attempts were made to obtain NYP’s own views relevant to the decision. We were also satisfied that the removal from care was, in the circumstances, the least intrusive intervention in the life and family of the children under consideration which was possible consistent with the paramount principle in subsection (1) and that the decision was the only way to ensure the provision of a safe, nurturing, stable and secure environment for the children. We cannot see that any other solution was, or is, consistent with providing such an environment for them.

35. Those factors seem to be the most relevant of the section 9 factors for the making of the decision under review.

36. For completeness we also took into account the fact that it appears clear that the degree of likelihood of risk is to be assessed on the balance of probabilities under the relevant provisions of the Care and Protection Act. As contended by Ms Shepherd, Solicitor, on behalf of Challenge, the other factor in this case which justifies particular caution in allowing the authorised carers to continue the care of the children is the fact that TSQ, the subject of serious police investigation and subsequent charges, is part of the extended family of the children’s authorised carers. He is the son-in-law of DCS.

Was there any practical alternative decision which might be preferable?

37. On the basis of the material before us and having taken into account the assertions and oral submissions made on behalf of the authorised carers, we concluded that there was no practical alternative decision which would be consistent with the principles set out in section 9 of the Carer and Protection Act or of Challenge’s general obligations of care and protection.

38. We were not made aware of any change to the circumstances, for example any disposal of the criminal proceedings against TSQ, as at the final day of the hearing, which might cause us to alter that view.

The case put by DCR and DCS and our analysis of it

39. On the final day of the hearing DCS made extensive oral submissions. For completeness we summarise below what we understood to be her submissions and our analysis of them. We accept that her submissions reflect the genuine concern and affection which DCS and DCA hold for the children under consideration.

1. We understood DCS firstly to contend that Challenge had an improper motive in making the decision under consideration. She asserted that the decision was, in her words, “made out of spite”. No evidence was produced in support of this contention and on any fair reading of the redacted section 58 material there is no indication that the relevant decision was made was based on any personal factors.

2. DCS secondly asserted that Challenge had used unreasonable and unfair methods to obtain information from NYP and his views. Again, a fair reading of the redacted section 58 material does not justify the conclusion and no further particulars or evidence were provided by DCS. The assertion is unsupported by the evidence.

3. DCS asserted that Challenge’s decision-maker had failed to take into account NYP’s particular personality characteristics and his disabilities. She asserted that NYP had written in his notebook words to the effect that he did not trust and was fearful of the Challenge staff. DCS asserted that Challenge staff had “stood over” NYP at certain periods. Challenge denied these assertions. In our view there was insufficient direct evidence to substantiate these assertions and even if DCS had been able to demonstrate that Challenge had failed to take into account these important factors, that alone would not persuade us that the decision under review was the wrong one. In our view, given the serious circumstances of the case the possible effect of the factors pressed by DCS is outweighed by the need to give paramount importance to the safety, welfare and well-being of the children, as required by s9 (1) of the Care and Protection Act and the application of the other section 9 factors which we have analysed at [34] above.

4. DCS further asserted that Challenge failed to take into account the past success of the placement of the children under consideration with the authorised carers, the authorised carers’ previous record and the fact that NYP in particular appeared to be happily settled in that placement. In our view even if these assertions had been substantiated by the available evidence, a proper consideration of them would not in the circumstances of the case have justified a different decision, which was the correct and preferable one in the circumstances. The authorised carers had not complied with Challenge’s directions and the decision under review was necessary in order to preserve and protect the safety, welfare and well-being of the children .

5. DCS made a general contention that the allegations of the influence of TSQ on the children were unfounded and misconceived. As discussed in more detail above at [24] and following paragraphs, we were satisfied on the evidence that:

1. Challenge had a reasonable belief as to the substantial threats to the welfare of the children which would flow from any continued contact with or influenced by TSQ;

2. that belief was reinforced by the authorised carers’ breach of the directions given to them by Challenge; and therefore

3. the decision under consideration was the correct and preferable one.

conclusion and orders

40. It must follow from our conclusions on the issues above that Challenge’s decision to remove the children from the care of the authorised carers was the correct and preferable one and it must be affirmed by us. We ordered accordingly.​

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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: 11 December 2018